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Republic of the Philippines

National Capital Judicial Region


METROPOLITAN TRIAL COURT
Branch 47, Pasay City

PEOPLE OF THE PHILIPPINES,


PLAINTIFF, CRIM CASES NOS. M-PSY-10-11399-41
FOR: 3 COUNTS OF PERJURY
-versus-

LEONICIA MARCO-LLARENA,
ACCUSED.
x-----------------------------------------x

RESOLUTION
Before this Court is a Motion to Withdraw Informations dated April 6, 2011
filed by Assistant City Prosecutor Luis Christopher Ballelos and noted by City
Prosecutor Elmer Mitra, per resolution of DOJ Undersecretary Leah Tanodra
Armamento in her resolution (PR-RESO-24C11-502) the dispositive portion of which
reads as follows:

WHEREFORE, the assailed resolution is hereby REVERSED and SET


ASIDE. The City Prosecutor of Pasay is directed to withdraw the three (3) informations
in Criminal case Nos. M-PSY-10-11339-CR, M-PSY-10-11340-CR and M-PSY-10-11341
for Perjury against Leonicia Marco LLarena before the Metropolitan Trial court,
National Capital Judicial Region, Branch 47, Pasay City and to report the action taken
within five (5) days from receipt hereof.

In order to fully understand this Courts resolution of this motion for withdrawal
of informations, the facts of these cases are substantially re-stated, thus:

COMPLAINT
Jaime Paule filed false testimony and perjury under Article 183 of the Revised
Penal Code against Leonicia Llarena (43 counts), Marilyn Araos (34 counts) and Marites
Aytona (39 counts). In his 57 page complaint before the Office of the City Prosecutor of
Pasay City, he alleged that Leonicia Llarena Marilyn Araos and Marites Aytona
conspired to shift the burden of their own respective liabilities to him by perjuring
themselves. The documents will prove that he has no participation in the scheme. There
are no paper trails towards him. Marites Aytona testified that she first met him in 1999.
On at least one occasion, she saw him at the National Printing Office with he had a
business dealing. In 2004, he claimed that he is a representative of a foundation
implementing the project which is funded by DA. He asked her to be a consultant on the
recommendation of Leonicia Llarena. Marites Aytona acceded and recommended the
services of Jose Barredo to his foundation. Jose Barredo is the whistle blower, in the
senate hearings. He introduced Marites Aytona to NOAPEPI President Jose Flordeliza.
She came to know Feshan and Julie Gregorio because he copy furnished her with

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Feshans product brochure. It was Leonicia Llarena who would pay the fertilizer
products to be supplied by Feshan headed by Julie Gregorio. It was he who chose
Feshan to be the supplier. He employed Marilyn Araos, former employee of Marites
Aytona. He brought Marites Aytona, Leonicia LLarena, Julie Gregorio and Reden
Antolin together in a meeting. In behalf of the foundation, he coordinated and dealt
with DA offices and spoke with certain congressmen on the project implementation.
Marites Aytona and Jose Barredo ran errands for him and they followed the instructions
from him who was their leader. The amount to be distributed to the LGUs was
determined by Jose Barredo for Bulacan and he for Region VI. Marites Aytonas
consultancy was with him alone and not with the foundation. She had no involvement
whatsoever in the procurement of the fertilizers and the financial aspect of the
operation. He promised to give Marites Aytona 3% of the foundations profit for her
services which he did not make good. Marites Aytonas testimony is belied by Feshan
President Julie Gregorio who said she does not know her. Her staff does not know her.
Julie Gregorio denied having transaction with him. She identified Marites Aytona and
Leonicia LLarena as those who purchased fertilizers from Feshan. Marites Aytona did
not present any contract with him at the Blue Ribbon Committee. He is not connected
with NOAEPI as testified by Jose Flordeliza. As to Marilyn Araos, she is the employee
of Marites Aytona as testified by Jose Barredo. The order slips of Feshans fertilizer
products bear the signature of Marilyn Araos. Raquel Paz, LBP manager, testified that
Gregorio, Anolin, Araos, Aytona and Llarena opened up an account on March 9, 2004.
Marilyn Araos presented her ID showing she is the finance officer of Feshan. Secretarys
Certificate to the bank states that Marilyn Araos is Feshans financial officer for special
project. Leonicia Llarena testified that she knew him since 1998. In 1988, he was a sales
agent for textbooks. He walked into her office looking for books to be supplied to an
LGU under a government contract awarded to him. On occasion, she extended some
financial assistance to him for his construction business. In February, 2004, he
informed her of a project with DA involving the procurement of fertilizers. He asked her
to lend him a money which he will use to buy stocks of fertilizers from Feshan. He told
her that a SARO and NCA were issued for the fertilizer project. She had no money so he
requested her to allow him to use her credit line with a bank as well as her checking
account. Instead of lending cash to him, she drew and issued 10 accommodation LBP
checks in the total amount of P12, 695, 800.00 payable to Feshan to secure the release
of fertilizer stocks to him from March to September, 2004. She received from him 10%
accommodation fee, approximately P1.2 million of the total amount of the checks. He
was the one buying fertilizer products from Feshan. She has no participation in buying
products from Feshan as she transacted only with him. Her role is to issue
accommodation checks. Her credit line with WG & A was used by Feshan for the
shipment of fertilizer products. She guaranteed the freight charges in his favor but it was
he who paid them. Marilyn Araos worked for him at the time of projects
implementation. Leonicia LLarena recommended to him the services of Marites
Aytona. The senate testimonies of Leonicia Llarena, Marites Aytona and Marilyn Araos
were inconsistent, false, and incredible. He sought for a total of P5 million damages
against them.

COUNTER AFFIDAVIT
Accused Leonicia Llarena denied all the allegations in paragraphs 3.22 to 40 of
the complainant-affidavit. These allegations are fabrications, conclusions and
speculations that are bereft of factual bases. Contrary to the complaint, there was no
meeting that took place between her and the complainant Jaime Paule prior to the
taking of her testimony before the Senate. She voluntarily and diligently appeared

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before the Senate Blue Ribbon Committee hearings as an invited resource person. She
gave her oral and written testimonies about all the matters pertaining with her
participation in the events she has personal knowledge of relative to the alleged P728
million fertilizer fund scam, the subject matter of the said inquiry. On February 4,
2007, private complainant was cited in contempt for lying relative to his testimony on
January 20, 2009 by the Senate. Consequently, he was arrested and jailed at Pasay
City. The Senate Committee Report No. 254 recommended that he be charged with false
testimony or perjury.

INFORMATIONS
Accused Leonicia Llarena was charged with three (3) counts of Perjury defined
and penalized under Article 183 of the Revised Penal Code , the following are the
accusatory portions:

In Criminal Case No. M-PSY-10-11339-CR

The undersigned Assistant City Prosecutor accuses Leonicia Marco-Llarena, of the


crime of Perjury defined and penalized under Article 183 of the Revised Penal Code,
committed as follows:

That on the 20th day of January 2009, in Pasay City, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused Leonicia
Marco-Llarena, did then and there willfully, unlawfully and knowingly made untruthful
statements or falsehood upon material matters in her testimony before the Senate Blue
Ribbon Committee Investigation on the alleged Php728 million fertilizer fund scam
upon material matter which are the subject of inquiry and are the basis for the
determination of truth with the end in view of charting effective policies and programs
for the agriculture sector, thus:

THE CHAIRMAN. xxx (k)ailan mo siya (Paule) unang nakilala?

MS. LLARENA. 1998 or - xxx Kasi po nag-walk in sila noon. May nagpakilala
na isang tao, may kasama siya non xxx Kasi po 'yong aking mga books, accredited po ng
ano yan, ng DepEd, so, may mga listahan. Tapos nandon din po 'yong mga name ng
companies, siguro nakita nila dun. So, pumunta sila sa office, sabi nila, naghahanap sila
ng testbook na hinahanap ng isang LGU. Xxx xxx Pagkatapos po non, nakakuha
naman po sila, eh. Nakakuha naman po siya -

THE CHAIMAN. Ng libro.

MS. LLARENA. Ng kontrata, opo.

THE CHAIRMAN. Ng kontrata para sa libro.

MS. LLARENA. Oho.

xxx xxx

THE CHAIRMAN. Okay, so kailan pumasok si Aytona sa picture?

MS. LLARENA. Naghahanap po talaga siya ng kasama xxx ang sabi ko,
Oy, si Tess hindi ba nagkasama na kayo before?

THE CHAIRMAN. Naghahanap siya ng ksama for what?

MS. LLARENA. Para po sa implementation.

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THE CHAIRMAN. Xxx Anong ibig sabihin nung i-implement?

MS. LLARENA: Ang pagkakaalam ko po para pumunta doon sa mga LGU.

THE CHAIRMAN. Pumunta sa mga LGU, kumuha ng mga foundation.

MS. LLARENA. Opo. Opo.

THE CHAIRMAN. Sa madaling sabi nakuha ni Paule si Aytona?

MS. LLARENA. Opo. Opo.

xxx xxx

MS. LLARENA. Si Minda po ay kahera ko. Every day ang kanya pong
trabaho iikot sa bangko para mag-update ng gaming mga accounts. Kasi po ang
aming ano sa publishing iyon pong mga nagdedeposito na mga ahente throughout the
Philippines, iyon po ay ina-update niya. Ngayon po, si Mr. Paule ngayon ko lang po
na- realize, eh, si Mr. Paule, nagpapa-encash iyan ng tseke, ano po, tapos siya
nandoon lang sa lobby naming, pakape-kape, tapos may mga tao po siyang pinasasama
para tumanggap noong cash. So, ang kahera ko po kilala sa bangko, ano po. Sabi niya,
Lambing lang ha, Minda, pwede bang mag-encash? So, ako naman po sinabi ko,
Okay lang. Kasi talaga naming kilala siya sa bangko. Hindo ko nga lang po nalaman
na noon nga pong Friday, nagpa-interview siya na may paper trail daw. Aba eh nakita
ko, oo nga po, kasi ang kahera ko ang nag-e-encash. So, ako ang nag-issue ng tseke sa
Feshan. Iyong nga utang niya sa akin, pina-issue ko sa pangalan ko. Kapag po may
nakuha sila na pera sa kumpanya ko, doon naman po sa kumpanya ko iyan pinapa-
issue. Tapos po, kapag nagpapa-encash sila, iyon po, ang sinasabi nila, Ikaw naman
ang kilala, pwede bang pa-encash lang? At iyon pong aking kahera, hindi naman po
nagdududa, wala naman po kaming naisip na ibang agenda, or ano, sa akin po, okay
lang iyon. Kaya po siya makikita ninyo na marami po talaga siya na encashment.

THE CHAIRMAN. Ang ibig ninyo bang sabihin, ito, pera ito ng fertilizer?

MS. LLARENA. Yes, sir.

THE CHAIRMAN. Pero galing kay Paule?

MS. LLARENA. Opo. Opo.

THE CHAIRMAN. At binabawi mo lang iyong utang niya?

MS. LLARENA. Yes, yes. xxx xxx

THE CHAIRMAN. So, in effect, nagwi-withdraw siya sa Feshan Account na


binayad sa iyo, humingi siya ng one million sa iyo ganoon ba iyon?

MS. LLARENA. Ah, hindi po.

THE CHAIRMAN. O, bakit niya kukunin iyong pera kung...

MS. LLARENA. Hindi po. Pinapa-withdraw po siya ni Kuya Jim.

THE CHAIRMAN. Ni (sit) Minda?

MS. LLARENA. Opo.

THE CHAIRMAN. So, si Minda Bombase ang nagwi-withdraw ng perang


binayad ng fertilizer, binibigay kay Paule pagkatapos?

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MS. LLARENA. Kuya Jim po, opo.

THE SENATE PRESIDENT. 'Yung mga tseke nasa pangalan ni Bombase?

MS. LLARENA. Opo.

THE SENATE PRESIDENT. Para kay Jim (Paule) 'yun (?)

MS. LLARENA. Yes, sir. Pero hindi ko po nakita na naka-pangalan sa kanya


'yun...

THE SENATE PRESIDENT. Alam mo...

MS. LLARENA. Opo.

When in truth and in fact, said accused knew fully well that complainant Jaime L.
Paule was not involved in this so called fertilizer scam.

Contrary to law.

In Criminal Case No. M-PSY-10-11340-CR

The undersigned Assistant City Prosecutor accuses Leonicia Marco-Llarena, of


the crime of Perjury defined and penalized under Article 183 of the Revised Penal Code,
committed as follows:

That on the 22nd day of December 2008, in Pasay City, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused Leonicia Marco-Llarena, did then and there willfully, unlawfully and knowingly
made untruthful statements or falsehood upon material matters in her testimony before
the Senate Blue Ribbon Committee Investigation on the alleged Php728 million
fertilizer fund scam upon material matter which are the subject of inquiry and are the
basis for the determination of truth with the end in view of charting effective policies
and programs for the agriculture sector, thus:

THE SENATE PRESIDENT. Hindi ikaw ang bumibili ng producto, si Paule ang
bumibili ng produkto?

MS. LLARENA. Opo.

xxx xxx

SEN. LACSON. Ms. Llarena, what you are trying to impress on the member
of this Committee, ang papel ninyo lamang dito ay parang nag-a- advance lang,
nagpapautang lamang sa pamamagitan ng tseke at ang dealing ninyo lang ay kay Mr.
Paule at never sa Feshan?

MS. LLARENA. Yes, sir.

SEN. LACSON. Sigurado po iyan?

MS. LLARENA. Yes, sir.

xxx xxx

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THE SENATE PRESIDENT. xxx D'yan sa dokumento na ipinakita sa iyo, ibig
sabihin no'n na ikaw ang shipper through Gothong (William Gothong and Aboitiz
Inc. [WG &A], hindi ba, nung fertilizer? xxx As shipper, you are supposed to be the
owner.

MS. LLARENA. Hindi po ako ang shipper, Feshan po. Naka-address lang po
'yung ako po 'yung magbabayad kasi credit line ko po ang ginamit.

THE SENATE PRESIDENT. Feshan ang shipper (?)

MS. LLARENA. Opo. Hindi po ako.

THE SENATE PRESIDENT. Ikaw ang magbabayad in other words...

MS. LLARENA. Hindi po, line ko po kasi ang ginagamit. Kasi bago po kayo
magpadala sa WG & A, kailangan po meron kayong credit line. May credit line po ako
dun, eh. So, 'yun po ang pinagamit ko sa kanila.

THE SENATE PRESIDENT. So, what was Paule? Paule was your agent or
was he the buyer of the product from Feshan?

MS. LLARENA. S'ya po.

THE SENATE PRESIDENT. So, in other words, (Paule) ordered the


fertilizer from Feshan and Feshan shipped it through Gothong but the payment was
guaranteed by you for Paule to Feshan and you also guaranteed the payment of the
freight to Gothong for Paule.

MS. LLARENA. Yes, sir. Yes, sir.

xxx xxx

THE CHAIRMAN. So, Ms. Llarena, pinapatunayan n'yo na ngayon na hindi


ninyo sinabi sa affidavit n'yo na kayo ang agbabayad ng inyong mga ng mga freight
nitong binibili ninyo at kayo ang lumalabas na nagbabayad no'n?

MS. LLARENA. Hindi po. 'Yon po'y binabayaran din po ni Jimmy Paule.
Hindi naman po sa akin.

xxx xxx

THE SENATE PRESIDENT. At the time this transaction was going on, Ms.
Araos was employed where and by whom?

MS. LLARENA. Freelancer po siya kay Jimmy Paule po.

THE SENATE PRESIDENT. Ah, connected kay Paule.

xxx xxx

When in truth and in fact, said accused knew fully well that complainant Jaime L.
Paule was not involved in this so called fertilizer scam.

Contrary to law.

In Criminal Case No. M-PSY-10-11341-CR

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The undersigned Assistant City Prosecutor accuses Leonicia Marco-Llarena, of
the crime of Perjury defined and penalized under Article 183 of the Revised Penal Code,
committed as follows:

That on the 17th day of December 2008, in Pasay City, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, the above-ma,ed accused Leonicia
Marco-Llarena, did then and there willfully, unlawfully and knowingly made untruthful
statements or falsehood upon material matters in her testimony before the Senate Blue
Ribbon Committee Investigation on the alleged Php728 million fertilizer fund scam
upon material matter which are the subject of inquiry and are the basis for the
determination of truth with the end in view of charting effective policies and programs
for the agriculture sector, thus:

THE CHAIRMAN. xxx Ngayon, nung lumapit ba sila (Paule and Aytona)
tungkol dito sa nanghihiram sila ng pera, ano ang sinasabi nila sa inyo exactly?

MS. LLARENA. May proyekto daw may proyekto po sila sa DA, marami
daw pong lumabas na pera, sabi ko saan... 'yun lang po ang sinabi niya (sic) sa akin.

THE CHAIRMAN. Sabi mo saan eh. Saan galing?

MS. LLARENA. Sabi ko, saan galing? Sabi nila, mayroon daw pong... xxx
Mayroon daw pong mga nakukuha...kasi po marami sila 'yung SARO (Special Allotment
Release Order)/ NCA (Notice of Cash Allocation) na mga nakikita xxx

THE CHAIRMAN. Siyempre tinanong ninyo. May SARO na ba kayo? Mayroon


na bang SARO 'yan?

MS. LLARENA. Tinanong ko po.

THE CHAIRMAN. May NCA na kayo?

MS. LLARENA. Mayroon daw po 'yon.

xxx xxx

THE CHAIRMAN. Ang (total amount ng mga) binigay n'yong tseke, (P)12, 695,
800?

MS. LLARENA. Opo.

THE CHAIRMAN. At ang accommodation fee ay 10 percent?

MS. LLARENA. Opo.

THE CHAIRMAN. Papaano kayo binayaran dito, cash?

MS. LLARENA. Yes, Your Honor.

THE CHAIRMAN. Sino ang nagbigay sa inyo?

MS. LLARENA. Si Jimmy Paule po.

THE CHAIRMAN. Jimmy Paule ang nagbigay sa inyo ng cash about (P)1.2
million?

MS. LLARENA. Opo.

THE CHAIRMAN. Sabay-sabay or...?

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MS. LLARENA. Ah, hindi naman po.

THE CHAIRMAN. Parte-parte?

MS. LLARENA. Hindi po. Pag-nung March nagbigay na rin po sila ng


ganitong amount.

THE CHAIRMAN. March?

MS. LLARENA. Opo.

THE CHAIRMAN. 1.2...

MS. LLARENA. Hindi po. 'Yung March 25. Di ba po mayroong... Iba-


iba naman po ang date ng check.

THE CHAIRMAN. So, pag nag-advance ka ng tseke, binabayaran ka na kaagad?

MS. AYTONA. Opo.

xxx xxx

THE CHAIRMAN. ...So, that was March. So, bayad na kayong lahat dito sa
1.3 million na ibinigay sa inyong accommodation.

MS. LLARENA. Opo.

THE CHAIRMAN. Although staggered ang bigay sa inyo ng 1.3 million?

MS. LLARENA. Staggered.

THE CHAIRMAN. xxx Cash ba iyon, hindi tseke?

MS. LLARENA. Cash po.

THE CHAIRMAN. Si Jimmy Paule ang nagde-deliver?

MS. LLARENA. May pinapadala po siyang iba...

THE CHAIRMAN. Ah, mayroon siyang pinadadalhan, sino?

MS. LLARENA. Oho, staff lang naman po iyon, hindi po ano...

THE CHAIRMAN. Staff.

MS. LLARENA. Minsan, oho.

THE CHAIRMAN. Paano ako maniniwala na...

MS. LLARENA. Minsan idadaan po sa office.

When in truth and in fact, said accused knew fully well that complainant Jaime L.
Paule was not involved in this so called fertilizer scam.

Contrary to law.

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COMMENT TO THE MOTION FOR WITHDRAWAL
OF INFORMATIONS

The comment to the motion for the withdrawals of informations filed by private
complainant Jaime Paule through his counsel Atty. Constantino Navarro III, as private
prosecutor, does not bear the conformity of the trial prosecutor, Assistant City
Prosecutor Luis Christopher Ballelos. Therefore, it is treated as a mere scrap of paper.

ISSUES
(1) Whether or not this Court can entertain the motion to withdraw the informations
after the arraignment of the accused;
(2) Whether or not all the elements of perjury are attendant in these cases;
(3) Whether or not private complainant is entitled to P5 million damages; and
(4) Whether or not private complainant can question the motion for the withdrawal
of informations or move for reconsideration without the Office of the City
Prosecutor and appeal the DOJ resolution without the Office of the Solicitor
General.

APPLICABLE LAW
False testimony in other cases and perjury in solemn affirmation The penalty of
arresto mayor in its maximum period to prision correccional in its minimum period
shall be imposed upon any person, who knowingly makes untruthful statements and not
being included in the provisions of the next preceding articles, shall testify under oath,
or make an affidavit, upon any material matter before a competent person authorized to
administer an oath in cases in which the law so requires. Any person who, in case of a
solemn affirmation made in lieu of an oath, shall commit any of the falsehoods
mentioned in this and the three preceding articles of this section, shall suffer the
respective penalties provided therein.

RULING
This Court can entertain the motion to withdraw the informations after
the arraignment of the accused.

In Crespo vs. Mogul1, the Supreme Court held that once a criminal complaint or
information is filed in court, any disposition of the case or dismissal or acquittal or
conviction of the accused rests within the exclusive jurisdiction, competence, and
discretion of the trial court. The trial court is the best and sole judge on what to do with
the case before it. A motion to dismiss the case filed by the public prosecutor should be
addressed to the trial court that has the option to grant or deny the same. This rule
applies to a motion to withdraw the Information or to dismiss the case even
before or after arraignment of the accused. The only qualification is that the
1 G.R. No. L-53373, 30 June 1987, 151 SCRA 462.

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action of the trial court must not impair the substantial rights of the accused or the right
of the People or the private complainant to due process of law.

When the trial court grants a motion of the public prosecutor to dismiss the case, or
to quash the Information, or to withdraw the Information in compliance with the
directive of the Secretary of Justice, or to deny the said motion, it does so not out of
subservience to or defiance of the directive of the Secretary of Justice but in sound
exercise of its judicial prerogative. The trial court is not a rubber stamp of the
Department of Justice. The rule is settled that once a criminal complaint or information
is filed in trial court, any disposition thereof, such as its dismissal or the conviction or
acquittal of the accused, rests in its sound discretion. While the prosecutor retains the
discretion and control of the prosecution of the case, he cannot impose his opinion on
the trial court that is the best and sole judge on what to do with the case. Accordingly, a
motion to dismiss the case filed by the prosecutor before or after the arraignment, or
after a reinvestigation, or upon instructions of the Secretary of Justice who reviewed the
records upon reinvestigation, should be addressed to the discretion of the trial court.2
When confronted with a motion to withdraw an information on the ground of lack of
probable cause based on a resolution of the secretary of justice, the bounden duty of the
trial court is to make an independent assessment of the merits of such motion. Having
acquired jurisdiction over the case, the trial court is not bound by such resolution but is
required to evaluate it before proceeding further with the trial. While the secretary's
ruling is persuasive, it is not binding on courts. A trial court commits reversible
error or even grave abuse of discretion if it refuses or neglects to evaluate
such recommendation and simply insists on proceeding with the trial on
the mere pretext of having already acquired jurisdiction over the criminal
action.

In resolving a motion to dismiss the case or to withdraw the Information filed by


the public prosecutor on his own initiative or pursuant to the directive of the Secretary
of Justice, either for insufficiency of evidence in the possession of the prosecutor or for
lack of probable cause, the trial court should not rely solely on the findings of the public
prosecutor or the Secretary of Justice that no crime was committed or that the evidence
in the possession of the public prosecutor is insufficient to support a judgment of
conviction of the accused.3 The trial court must make an independent evaluation or
assessment of the merits of the case and the evidence on record of the prosecution.4 The
trial court may make an independent assessment of the merits of the case based on the
affidavits and counter-affidavits, documents, or evidence appended to the Information;
the records of the public prosecutor which the court may order the latter to produce
before the court; or any evidence already adduced before the court by the accused at the
time the motion is filed by the public prosecutor.

In other words, the grant of the motion to dismiss must be based upon
considerations other than the judges own personal individual conviction that there was
no case against the accused. Whether to approve or disapprove the stand taken by the
prosecution is not the exercise of discretion required in cases like this. The trial court
judge must be convinced that there was, indeed, no sufficient evidence against the
accused, and this conclusion can be arrived at only after an assessment of the evidence
in the possession of the prosecution. What was imperatively required was the trial
judges own assessment of such evidence, it not being sufficient for the valid and proper

2 Hipos et al. vs. Judge Bay, G.R. Nos. 174813-15 , March 17, 2009.
3 Santos vs. Orda Jr. , G.R. No. 158236 , September 1, 2004.
4 Martinez vs. Court of Appeals, 237 SCRA 575 (1994).

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exercise of judicial discretion merely to accept the prosecutions word for its supposed
insufficiency.

Independent Assessment of the Case

Not all of the elements of perjury are attendant in these cases

The decisive issue to be resolved in the instant case is whether or not there is a
perjury.

The elements of perjury are: 1. The accused made a statement under oath or
executed an affidavit upon a material matter; 2. The statement or affidavit was made
before a competent officer authorized to receive and administer oath; 3. In that
statement or affidavit, the accused made a willful and deliberate assertion of a
falsehood; and 4. The sworn statement or affidavit containing the falsity is required by
law or made for a legal purpose.5

The first and second elements were satisfied when the accused Leonicia Llarena,
under oath, testified before the Senate Blue Ribbon Committee on December 17, 2008,
December 22, 2008, and January 29, 2009, regarding the P728 million fertilizer fund
scam, a material matter, because it will establish the culpability of private complainant
as a co-conspirator in the commission of the crimes and offenses recommended against
them by the said Committee. Her oath was taken by the Chairman of the Senate Blue
Ribbon Committee, a competent officer authorized to administer oath.

The third element of perjury requires that the accused Leonicia Llarena willfully
and deliberately assert a falsehood. This is non-attendant in this case. There is no
evidence presented by private complainant Jaime Paule that her senate testimony is a
willful and deliberate assertion of falsehood. There is nothing on record to show that
accused Leonicia Llarena maliciously committed the series of criminal acts imputed to
her. Her act of testifying, and her testimonies, made upon summons issued by the
Senate are not malicious per se. In the complaint of Jaime Paule, he stated, inter alia,
that it was accused Leonicia Llarena who inquired from Feshan about the
specifications, prices and other details of its fertilizer products. It was she not the
private complainant who placed orders for such products and made follow ups with
Feshan. She was the one who picked up the products from the supplier and distributed
them to the LGUs. Private complainants name did not figure in the entire process.
There is no paper trail leading to his person to be the participant. All the documentary
evidence exculpates him and proves the culpability of accused Leonicia Llarena as well
as Maritess Aytona and Marilyn Araos. However, the Senate witnesses established
private complainants role in the P728 fertilizer scam, notably was the testimony of
Natalio Castillo Jr.6 An analysis of the transcript of the stenographic notes reveals
that accused Leonicia Llarena stood by with her statements, and explained the
contradictions and inconsistencies made by other senate witnesses like Feshan
President Julie Gregorio and Redentor Antolin. To quote:

5 Saavedra, Jr. vs. Department of Justice, 226 SCRA 438, 445 (1993) citing Diaz vs. People, 191 SCRA 86, 93.
6 Senate Committee Report No. 254, p. 29.

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SEN. LACSON: Anyway, I will proceed to the second pair of affidavit, Mr. Chairman.
Itong sworn statement ni Ms. Gregorio eh kumokontra naman balikan ko na lang
mamaya si Mr. Barredo kumokontra naman doon sa sinumpaang salaysay ni Ms.
Llanera. Ang sinsabi ni Ms. LLanera wala siyang dealings sa Feshan, wala siyang
direktamenteng pkikipagdeal sa Feshan, kay Ms. Gregorio at kung saan pumayag eh
pumayag siya na pautanging na lamang sa affidavit nya ito- Sa halip na pautangin ko
si Jimmy Paule ng pangangailangan nila sa kanilang proyekto, sinabi ko na mag-iisue
na lamagn ako ng tseke sa Feshan Philippines. But you were dealing with Jimmy Paule,
hindi po ba, Ms Llarena?

MS. LLARENA: Yes, yes, Sir.

SEN. LACSON: Pero ang sinasabi naman po ni Ms. Gregorio sa kanyang affidavit , ang
sabi rito, That since I was in the trading business, ms. Necy, referring to you I suppose
and I discussed the possibility of buying selling fertilizer as Ms. Necy had expressed
her desire to buy fertilizer from us and we indeed were able to arrive at the following
terms and conditions: one, issuance of checks in favor of Feshan representing 25
percent of the purchases made by Ms. Necy. Opening an account Very extensive po
ayon kay Ms. Gregorio ang dealings ninyong dalawa. So alin po ba ang tama rito at alin
ang mali? May we here from Ms. Gregorio first.

MS. GREGORIO: I suppose ako po ang tama.

SEN. LACSON: Ms. Llarena, so kayo po ang mali?

MS. LLARENA: Hindi po. Kasi po ang akin pong talagang kausap dyan eh si Jimmy
Paule. Pumunta lang po sila sa office para po makakuha yong aking mga, yung tseke. So
hindi po ako ang kausap na directly, dahil pumunta po sila sa office, isang beses silnga
pumunta sa office.

THE CHAIRMAN: Isang beses lang?

MS. LLARENA: Isang beses lang po.

THE CHAIRMAN: Sinu-sino sila?

MS. LLARENA: Si Julie

THE CHAIRMAN: Si Julie Del Rosario.

MS. LLARENA: Hindi po.

THE CHAIRMAN: No, Julie Gregorio, Im sorry.

MS. LLARENA: Julie Gregorio, tapos po si Antolin, tapos po si Ms. Aytona.

THE CHAIRMAN: So hindi totoong kayo ang nagpunta sa Feshan.

MS. LLARENA: Hindi po ako nakakapunta pa

THE CHAIRMAN: Pero ang sinasabi ni Antolin kayo ang nagpunta sa Feshan. Di ba Mr.
Antolin?

MR. ANTOLIN: Sir, hindi ko po sinabi yon.

THE CHAIRMAN: Ah sinabi mo iyon.

MS. ANTOLIN Ang sabi kop o nag-inquire po.

12
THE CHAIRMAN: Ha?

MR. ANTOLIN: Nag-inquire po ang sinabi ko.

THE CHAIRMAN: Anong nag-inquire?

MR ANTOLIN: Nag-inquire from the office of

THE CHAIRMAN: Ikaw ang, tumawag sa telepono, nagpunta doon?

MR ANTOLIN: Somebody, hindi po kasi sabi ko nga po hindi ko na hinahandle ang


fertilizer . Nag inquire po.

MS. LLARENA: Excuse me. Hindi po ako nag inquire sa

MR CHAIRMAN: Hindi kayo nag-inquire.

MS. LLARENA : hindi po ako nag inquire.

MR CHAIRMAN: So pabago-bago ang istorya mo, mr. Antolin. Noong nandito ka at


sinabi mo na nagpunta ang Feshan nagpunta sa Feshan si Ms. Llarena.

MR. ANTOLIN: I cannot recall saying sir, na nagpunta po. Ang sabi ko po

THE CHAIRMAN: I will show it to you later. I hope you can remember much better,
no.7

In his affidavit, private complainant cited the inconsistencies of accused Leonicia


Llarenas testimonies during the Senate investigations. On December 17, 2008, she
testified that she received from private complainant her accommodation fee in cash and
in tranches, with each tranche given every time that she issued a check. On December
22, 2008, accused Leonicia Llarena changed her version by saying that private
complainant paid her after every collection that he made. On January 26, 2009, she
contradicted herself when she testified that the accommodation fee was paid in checks
drawn by Feshan. These inconsistencies were explained and cleared up by the accused
Leonicia Llarena, to wit:

SENATE PRESIDENT: Ngayon, sino ang consignee? Sino ang tumanggap doon? Shinip
(ship) ng Feshan ang produkto , kanino ishinip (ship) ang carrier, Gothong, kanino
ideniliber (deliver) ang fertilizer na iyon, yong produkto na iyon; at sino ang ultimate
buyer of that fertilizer na nagbayad para I charge doon sa P728 million ng gobyerno?
Iyon dapat ang malaman. That is the whole thing. You start with the suppliers, then the
one who paid is Ms. Llarena and then, although she said it was for the account of Paule.
Now, the one that shipped the product, according to the document is Feshan, to whom
was that consigned, and to whom did that consignee deliver the product, and how did
Ms. Llarena get paid for the money that she paid for the product. How did you get
reimbursed Ms. Llarena?

MS. LLARENA: Binayaran po ako ni Jimmy Paule.

THE SENATE PRESIDENT: By checks?

MS. LLARENA: May cash po.

THE SENATE PRESIDENT: Cash plus 10 percent?


7 TSN, Senate Hearing of December 22, 2008, pp. 49 to 51.

13
MS. LLARENA: Opo. Maliit naman po iyong check, eh, may hundred and

THE SENATE PRESIDENT: So, in other words hindi, hindi ko to kinuwan it was
Paule who dealt with you.

MS. LLARENA: Yes, sir.

THE SENATE PRESIDENT: At binayaran ka in cash ni Paule?

MS. LLARENA: Yes, sir, yes, sir.

Private complainant alleged also that it was the accused Leonicia Llarena not
the private complainant who was testified to by Julie Gregorio as having ordered and
paid for fertilizer stocks from Feshan. He never transact or deal with Feshan or any of
its officers, representatives and employees. Neither Julie Gregorio or any of her staff
knew him. From the testimony of Julie Gregorio, it was Maritess Aytona and Leonicia
Llarena who spoke and dealt with her on the procurement of fertilizers. There is no
iota of truth in accused Leonicia Llarenas claim that as a mere accommodation party,
she dealt only with him as the real buyer of the fertilizer but not to Feshan. Her
fingerprints are every stage of the process from procurement to actual distribution.
The Bills of Lading for the shipment of the fertilizer showed that accused Leonicia
Llarena was the shipper of the fertilizer. Again, there was an explanation on these
allegations by accused Leonicia Llarena during the senate hearing. Thus:

THE SENATE PRESIDENT: As shipper, you are supposed to be the owner.

MS. LLARENA: Hindi po ako ang shipper, Feshan po. Naka address lang po iyong ako
po yung parang magbabayad kasi credit line kop o ang ginamit.

THE SENATE PRESIDENT: Feshan ang shipper.

MS. LLARENA: Opo, hindi po ako.

THE SENATE PRESIDENT: Ikaw ang magbabayad. In other words

MS. LLARENA: Hindi po. Kasi line kop o kasi ang ginamit. Kasi bago magpadala sa WG
& A, kailangan po mayroon kayong credit line. May credit line po ako doon eh. So, iyon
op ang pinagamit ko sa kanila.

THE SENATE PRESIDENT: Tignan ko nga ang yung dokumento.

MS. LLARENA: Eto po.8

Malice or bad faith in a crime of perjury are not presumed by law. The intention
of malice and bad faith on the part of the accused Leonicia Llarena must be clearly
established and supported with convincing proof by the private complainant. Any naked
assertion of the existence of malice or bad faith in perjury will not suffice. Mere
allegation is not an evidence, it must be proven by sufficient evidence.9 Moreover, good
faith and lack of criminal intent on the part of the accused are defenses in perjury.
Private complainant Jaime Paule failed to allege bad faith against accused Leonicia
8 TSN, Senate Hearing of December 22, 2008, p. 68.
9 Coronel vs. CA 263 SCRA 15.

14
Llarena. This failure is reflected in the informations of perjury filed against her. The
informations against her are defective.

In People vs. former Pres. Joseph Estrada, Crim. Case No. 26905, September 12,
2007, Sandiganbayan held, In order to be liable for perjury, the falsehood committed
by the accused in his sworn statement must be deliberate and willful. According to
Blacks Law Dictionary, the use of the word (deliberate) in describing a crime, the idea
is conveyed that the perpetrator weighs the motives for the act and its consequences, the
nature of the crime, or other things connected with his intentions, with a view to a
decision thereon; that he carefully considered all these and that the act is not suddenly
committed. The accused former President Joseph Estradas omission in his SALN of
the subject moneys in the bank and business and financial interests in the said
corporations was not deliberate and unintentional. The accused former Presidents
testimony as corroborated by documentary evidence from the Securities and Exchange
Commission on the inactive status of the corporations and the certifications from the
Social Security System on the temporary suspension of the corporations for not filing
contributions for several years, if considered in their totality, negate the element of
willful and deliberate assertion of a falsehood. To sum it all up, the third element of
perjury has not been proven at all by the prosecution. Perjury being a felony by dolo,
there must be malice on the part of the accused. Willfully means intentionally; with evil
intent and legal malice, with the consciousness that the alleged perjurious statement is
false with the intent that it should be received as a statement of what was true in fact. It
is equivalent to "knowingly." "Deliberately" implies meditated as distinguished from
inadvertent acts. It must appear that the accused knows his statement to be false or as
consciously ignorant of its truth.

In another case, the Supreme Court declared that there was no perjury because
there was no deliberate assertion of falsehood. In Acua vs. Deputy Ombudsman for
Luzon et al., G.R. No. 144692, January 31, 2005, the ruling was that the third element
of perjury requires that the accused willfully and deliberately assert a falsehood. Good
faith or lack of malice is a valid defense. The respondent Pascuas statement in his
counter-affidavit in OMB-ADM-1-99-0387 that he called the July 16, 1998 meeting
does not constitute a deliberate assertion of falsehood. While it was Erlinda Yabut and
some unidentified ACNTS personnel who requested a dialogue with respondent Pascua,
it was respondent Pascuas consent to their request which led to the holding of the
meeting. Thus, respondent Pascuas statement in question is not false much less
malicious. It is a good faith interpretation of events leading to the holding of the
meeting.

The Senate Committee Report No. 254 attached as Annex E to the complaint of
Jaime Paule recommended the filing of false testimony / perjury in solemn affirmation
against him, to quote: Mr. Paule may be liable as he denied that he knew anything
about the scheme when in fact, he talked to Mr. Castillo and invited the latter to be its
financier. He denied knowing Ms. Araos, he denied that Araos was his employee or that
she was not introduced to him during the 50th birthday party of Ms. Llarena when in
fact, the contrary was true. Mr. Paule had repeatedly denied, in his affidavit and
testimony , before the Committee that he knew any one of the persons involved in the
scam. But the photograph taken during Ms Llarenas 50th birthday and the testimony of

15
four witnesses, at least, belie his assertion. His presence was there for all to see. He was
seated together with Antolin, Gregorio and Araos. Paule testified that the first time he
came across and got to know Ms. Aytona was in 2008 at the DPWH, Region IV-A office
when he attended a bidding, when in fact they had met and got to know each other in
1999 yet.10 Private complainant Jaime Paules constant denial in the Senate that he
does not know accused Leonicia Llarena is belied not only by a photograph, but by his
own complaint-affidavit dated July 2, 2009 subscribed and sworn to before Assistant
City Prosecutor Roque Rosales of Pasay City. In his complaint-affidavit, he alleged that
on December 14, 2008, he went to accused Leonicia Llarenas house at Quezon City,
where among others, she wanted him to pretend as an agent of Feshan and the real
purchaser of fertilizers was Marites Aytona while she was a mere guarantor. He
declined. She asked him to look for persons at DA and Landbank who could pilfer the
microfilms and other documents linking her to scam. He told her that what she wanted
is infeasible and desperate. At this point, the accused Leonicia Llarena became agitated
and cited all the help that she extended to him in the past.11 Their meeting prior to
accused Leonicia Llarenas taking of her testimonies by the Senate, assuming it is true,
revealed that they knew each other and they are more than a mere acquaintance.
Moreover, private complainant averred in his affidavit that accused Leonicia Llarenas
claim that she issued checks for the total amount of about P12 million without collateral
or any security for them does not strain ones credulity. In every instance that private
complainant borrowed money from her in the past, accused Leonicia Llarena, being an
astute businesswoman, would always require him to furnish her with sufficient security
for the loan, usually in the form of mortgage.12 Her alleged agreement to extend
unsecured accommodation in his favor goes against the grain of sound commercial
judgment and practice. Therefore, with these allegations in his complaint-affidavit, it is
a proof that private complainant and accused knew each other and they engaged in
several loan transactions. This Court notes that private complainant Jaime Paule did
not controvert the report that his daughter worked as freelancer writer for accused
Leonicia Llarena, owner of Dane Publishing. Neither did he show the direct link of
accused Leonicia Llarena to Undersecretary Jocelyn Bolante or to the DA, so he will be
out in the picture of the grand conspiracy depicted in the P728 million fertilizer scam by
the Senate report.

According to private complainant, accused Leonicia Llarenas testimony that she


extended some financial assistance to him for the conduct of his construction business
and in February , 2004, he informed her of a project with the DA involving the
procurement of fertilizers, are false because he never had any business dealings with any
other government agency than the DPWH and the LRTA, and for the past 25 years, he
have been almost exclusively engaged in the construction business. These are classified
as self-serving statements under the Rule on Evidence. He did not present any proof to
bolster his denial which was contradicted by several Senate witnesses, including by
herein accused.

The last element of the crime of perjury which is the sworn statements containing
the falsity are required by law or made for a legal purpose is missing. The falsity of the
accused Leonicia Llarenas testimonies before the Senate is undetermined for absence

10 Karagdagan Sinumpaang Salaysay of Ms. Aytona, December 22, 2008.


11 Complaint-Affidavit of Jaime L. Paule, par. 3.27, p. 35.
12 Complaint-Affidavit of Jaime L. Paule, par. 3.36, p. 38.

16
of any convincing evidence that her testimonies are prevarication. Verily, the
informations for perjury against her cannot determine with absolute certainty that
private complainant Jaime Paule spoke the truth, not the other way around.

The accused Leonicia Llarenas testimonies before the Senate cannot be considered
as false by the mere contradictory affidavits and testimonies of Senate witnesses Julie
Gregorio and Redentor Antolin whose testimonies are suspicious, for they are
contradicted and considered as false also by other Senate witnesses.

In a landmark case, US vs. Capistrano No. 15001, March 15, 1920 (40 PHIL 902)
our Supreme Court, through its ponente Justice Manuel Araullo, held that a conviction
for perjury cannot be sustained merely on the contradictory sworn statements of the
defendant but the State must prove which of the statements of the defendant is false and
must show that statement to be false by other evidence than the contradictory
statement. In this case, Barbara Capistrano made a sworn declaration before the fiscal
of Manila City accusing her father Alejo Capistrano of rape on April 29, 1918 during the
preliminary investigation. Consequently, an information was filed for rape against her
father. On May 11, 1918, she filed a motion to dismiss the case stating that it is not her
father but a Spanish named Juan Sol raped her. The case was dismissed but the fiscal
filed a perjury case against Barbara Capistrano. Our Supreme Court acquitted the
accused Barbara Capistrano by ruling that the prosecution presented no other evidence
other than the two contradictory statements of the accused. According to the doctrines
laid down by the American courts, it must prove by other evidence than the two
contradictory statements themselves, which of them was false. It held that the
prosecution failed to present evidence tending to prove the existence of falsehood.

Applying the jurisprudence in the case at bar, there are no contradictory


testimonies made by accused Leonicia Llarena because she explained these
inconsistencies during the Senate hearing. She stuck with her own version of the story
in the P726 fertilizer scam. She even executed her affidavit to lend support thereto, and
she made a counter-affidavit before the Pasay City Prosecutors Office to debunk the
complaint of perjury against her by private complainant Jaime Paule. She did not make
two or more contradictory senate testimonies and affidavits before the Senate and
before the Office of the City Prosecutor without satisfactorily giving her explanation.
Even she did, the perjury charge cannot prosper by the mere presentation of these two
or more contradictory testimonies transcribed by the Senate as well as by adopting her
inconsistent affidavits. There must be a determination of falsity of the two or more
testimonies and affidavits by other independent evidence. The testimonies and
affidavits of Julie Gregorio and Redentor Antolin, by themselves, cannot declare the
testimonies of the accused Leonicia Llarena to be falsehood. These are not
independent evidence. They can refute or controvert the Senate testimonies of accused
Leonicia Llarena but they cannot successfully declare the same to be perjurious without
any other independent evidence to offer. In Masangkay vs. People, G.R. No. 164443,
June 18, 2010, the Supreme Court ruled, We have held before that a conviction for
perjury cannot be obtained by the prosecution by merely showing the inconsistent or
contradictory statements of the accused, even if both statements are sworn. The
prosecution must additionally prove which of the two statements is false and must show
the statement to be false by evidence other than the contradictory statement. The

17
rationale for requiring evidence other than a contradictory statement is explained thus:
Proof that accused has given contradictory testimony under oath at a different time will
not be sufficient to establish the falsity of his testimony charged as perjury, for this
would leave simply one oath of the defendant as against another, and it would not
appear that the testimony charged was false rather than the testimony contradictory
thereof. The two statements will simply neutralize each other; there must be some
corroboration of the contradictory testimony. Such corroboration, however, may be
furnished by evidence aliunde tending to show perjury independently of the declarations
of testimony of the accused.13

The private complainant is not entitled to P5 million damages.

Perjury like Falsification of Public Document is a crime against Public Interest. The
offended party is the State not a private person. As such, the principle in Article 100 of
the Revised Penal Code that Every person criminally liable is civilly liable is not
applicable. The award of the civil aspect of the felony committed such as restitution,
reparation and indemnification of consequential damages cannot be made in Perjury.
However, Article 2219 of the New Civil Code provides that moral damages may be
recovered in the following and analogous cases: (1) A criminal offense resulting in
physical injuries; (2) Quasi-delicts causing physical injuries; (3) Seduction, abduction,
rape, or other lascivious acts; (4) Adultery or concubinage; (5) Illegal or arbitrary
detention or arrest; (6) Illegal search; (7) Libel, slander or any other form of defamation;
(8) Malicious prosecution; (9) Acts mentioned in Article 309; (10) Acts and actions
referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34, and 35. This provision is termed as
independent civil action because it shall proceed independently of the criminal
action and it shall require only a preponderance of evidence. However, in no case,
may the offended party recover damages twice for the same act or omission charged in
the criminal action. In Barredo vs. Judge Maclano et al., G.R. No183467 , March 29,
2010, the trial court awarded P100,000.00 moral damages in perjury which was not
disturbed by the Supreme Court as the issue resolved was not the propriety of the award
of such damages. The conclusion that was reached is that perjury, although not
enumerated therein, falls under the category of analogous cases in Article 2219 of the
New Civil Code.

In order that moral damages may be awarded, there must be pleading and proof of
moral suffering, mental anguish, fright and the like.14 The allegations in the complaint
that there were suffering of mental anguish, serious anxiety, wounded feelings and
moral shock must be proven during the trial. Mere allegations do not suffice; they must
be substantiated by clear and convincing proof.15 In Keirulf vs. Court of Appeals, 269
SCRA 433 (1997), the Supreme Court held: "While no proof of pecuniary loss is
necessary in order that moral damages may be awarded, the amount of indemnity being
left to the discretion of the court, it is nevertheless essential that the claimant should
satisfactorily show the existence of the factual basis of damages and its causal
connection to defendants acts. This is so because moral damages, though incapable of

13 People vs. McClintic, 160 N.W. 461 (1916).


14 San Miguel Brewery, Inc. vs. Magno, 21 SCRA 292 (1967).
15 Philippine National Bank vs. Court of Appeals, 266 SCRA 136 (1997).

18
pecuniary estimation, are in the category of an award designed to compensate the
claimant for actual injury suffered and not to impose a penalty on the wrongdoer.

Article 29 of the New Civil Code provides that when the accused in a criminal
prosecution is acquitted on the ground that his guilt not been proved beyond reasonable
doubt, a civil action for damages for the same act or omission may be instituted. Such
action requires only a preponderance of evidence. Upon motion of the defendant, the
court may require the plaintiff to file a bond to answer for damages in cases the
complaint should be found to be malicious. If in a criminal case the judgment of
acquittal is based upon reasonable doubt, the court shall so declare. In the absence of
any declaration to that effect, may be inferred from the text of the decision whether or
not the acquittal is due to that ground. Although Article 29 of the New Civil Code and
under Article 2267 of the same Code are made applicable not only to future cases, but
also to pending cases, the former article refers to an acquittal on the ground that the
guilt of the accused has not been proven beyond reasonable doubt. On the other hand,
Rule 107, section 1, paragraph (d) of the Rules of Court states that the extinction of the
penal action does not carry with it extinction of the civil, unless the extinction proceeds
from a declaration in a final judgment that the fact from which the civil might arise did
not exist. In the other cases, the person entitled to the civil action may institute it in the
jurisdiction and in the manner provided by law against the person who may be liable for
restitution of the thing and reparation or indemnity for the damages suffered.
Considering that there is an insufficient evidence for perjury in this case, this Court
deems it proper not to award moral damages. No full blown trial can be conducted for
the purpose of determining the award of moral damages since civil liability arising from
the penal offense does not exist in view of the absence of all the elements of the crime
and for the reason of insufficiency of evidence. If the court has no proof or evidence
upon which the claim for moral damages could be based, such indemnity could not be
awarded outright. The same holds true with respect to the award of exemplary damages
where it must be shown that the party acted in a wanton, oppressive or malevolent
manner. Furthermore, this specie of damages is allowed only in addition to moral
damages such that no exemplary damages can be awarded unless the claimant first
establishes his clear right to moral damages.

The private complainant cannot question the motion for the withdrawal
of informations or move for reconsideration without the Office of the City
Prosecutor and appeal the DOJ resolution without the Office of the Solicitor
General.

Rule 110, Section 5 of the Revised Rules of Court states: Who must prosecute
criminal actions. All criminal actions commenced by a complaint or information shall
be prosecuted under the direction and control of the prosecutor. However, in Municipal
Trial Courts or Municipal Circuit Trial Courts when the prosecutor assigned thereto or
to the case is not available, the offended party, any peace officer, or public officer
charged with the enforcement of the law violated may prosecute the case. This authority
cease upon actual intervention of the prosecutor or upon elevation of the case to the
Regional Trial Court. This was amended by A.M. No. 02-2-07-SC, April 10, 2002:

19
Section 5. Who must prosecute criminal action. - All criminal actions either
commenced by complaint or by information shall be prosecuted under the direction and
control of a public prosecutor. In case of heavy work schedule of the public prosecutor
or in the event of lack of public prosecutors, the private prosecutor may be authorized in
writing by the Chief of the Prosecution Office or the Regional State Prosecutor to
prosecute the case subject to the approval of the court. Once so authorized to prosecute
the criminal action, the private prosecutor shall continue to prosecute the case up to end
of the trial even in the absence of a public prosecutor, unless the authority is revoked or
otherwise withdrawn. " Succinctly, the private prosecutor is only under the control and
supervision of the public prosecutor so that when the crime is a public crime where
there is no private offended party, the position taken, such as the filing of the motion for
the withdrawal of the informations, by the public prosecutor commands respect.

Section 35, Chapter 12, Title III, Book IV of the Administrative Code of 1987 states
that the Office of the Solicitor General shall represent the Government of the
Philippines, its agencies and instrumentalities and its officials and agents in any
litigation, proceeding, investigation or matter requiring the services of lawyers.
Likewise, the Solicitor General shall represent the Government in the Supreme Court
and the Court of Appeals in all criminal proceedings, thus: Section 35. Powers and
Functions. The Office of the Solicitor General shall represent the Government of the
Philippines, its agencies and instrumentalities and its officials and agents in any
litigation, proceeding, investigation or matter requiring the services of lawyers. When
authorized by the President or head of the office concerned, it shall also represent
government owned or controlled corporations. The Office of the Solicitor General shall
constitute the law office of the Government and, as such, shall discharge duties
requiring the services of lawyers. It shall have the following specific powers and
functions: (1) Represent the Government in the Supreme Court and the Court of Appeals
in all criminal proceedings ; represent the Government and its officers in the Supreme
Court, the Court of Appeals, and all other courts or tribunals in all civil actions and
special proceedings in which the Government or any officer thereof in his official
capacity is a party.

The law clearly requires the Office of the Solicitor General to represent the
Government in the Supreme Court in all criminal proceedings. As in every case of
statutory construction, the term criminal proceeding is defined as a proceeding
instituted to determine a persons guilt or innocence or to set a convicted persons
punishment.16 Proceeding is defined as any procedural means for seeking redress from
a tribunal or agency. It is the business conducted by a court or other official body.17

Only the Solicitor General may bring or defend actions in behalf of the Republic
of the Philippines, or represent the People or State in criminal proceedings before the
Supreme Court and the Court of Appeals. However, jurisprudence lays down two
exceptions where a private complainant or offended party in a criminal case may file a
petition directly with the Supreme Court. The two exceptions are: (1) when there is
denial of due process of law to the prosecution and the State or its agents refuse to act

16 Blacks Law Dictionary, 7th ed., 1999.


17 Ibid.

20
on the case to the prejudice of the State and the private offended party,18 and (2) when
the private offended party questions the civil aspect of a decision of a lower court.19

The first exception contemplates a situation where the State and the offended
party are deprived of due process because the prosecution is remiss in its duty to protect
the interest of the State and the offended party. The Supreme Court recognizes the right
of the offended party to appeal an order of the trial court which denied him and the
State of due process of law.20

In Merciales vs. Court of Appeals, 429 Phil. 70 (2002), the Supreme Court granted
the petition of the offended party and ruled as invalid the dismissal of the case in the
trial court for lack of a fundamental prerequisite, that is, due process. The public
prosecutor who handled the case deliberately failed to present an available witness
which led the trial court to declare that the prosecution had rested its case. In this
sense, the public prosecutor was remiss in his duty to protect the interest of the offended
party. As a result, the public prosecutor was found guilty of blatant error and abuse of
discretion, causing prejudice to the offended party. The trial court was likewise found
guilty for serious nonfeasance for passively watching the public prosecutor bungle the
case notwithstanding its knowledge that the evidence for the prosecution was
insufficient to convict and it could have, motu proprio, called for additional witnesses.
Thus, petitioner, who was the mother of the private offended party in the criminal cases
for rape with homicide, had been deprived of her day in court. She could do nothing
during the proceedings, having entrusted the conduct of the case in the hands of the
public prosecutor. All she could do was helplessly watch as the public prosecutor, who
was under legal obligation to pursue the action on the familys behalf, renege on that
obligation and refuse to perform his sworn duty. It was explained that it is not only the
State, but also the offended party, that is entitled to due process in criminal cases. The
issue on whether private complainant can bring an action was, however, rendered moot
when the Solicitor General, in representation of the People, changed his position and
joined the cause of petitioner, thus fulfilling the requirement that all criminal actions
shall be prosecuted under the direction and control of the public prosecutor.

Likewise, in People vs. Nano, G.R. No. 94639, January 13, 1992, the Supreme
Court took cognizance of the offended partys petition because of the gravity of the error
committed by the judge against the prosecution resulting in denial of due process. Aside
from the denial of due process, the Solicitor General also manifested to adopt the
petition as if filed by his office. Thus, it was ruled in Nano: The petition being defective
in form, the Supreme Court could have summarily dismissed the case for having been
filed merely by private counsel for the offended parties, though with the conformity of
the provincial prosecutor, and not by the Solicitor General. While it is the public
prosecutor who represents the People in criminal cases before the trial courts, it is only
the Solicitor General that is authorized to bring or defend actions in behalf of the People
or Republic of the Philippines once the case is brought up before the Supreme Court or
the Court of Appeals.21 Defective as it is, the Supreme Court, nevertheless, took

18 Cario vs. De Castro, G.R. No. 176084, April 30, 2008, 553 SCRA 688, 696.
19 People v. Santiago, G.R. No. 80788, June 20, 1989, 174 SCRA 143.
20 Heirs of Delgado et al. vs. Gonzalez et al., G.R. No. 184337, August 7, 2009.

21People vs. Calo, 186 SCRA 620; Republic vs. Partisala, 118 SCRA 320; City Fiscal of Tacloban vs. Espina, 166 SCRA 614.

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cognizance of the petition in view of the gravity of the error allegedly committed by the
respondent judge against the prosecution denial of due process as well as the
manifestation and motion filed by the Office of the Solicitor General praying that the
instant petition be treated as if filed by the said office. In view thereof, it was
considered that the People as the sole petitioner in the case duly represented by the
Solicitor General. Payment of legal fees is therefore no longer necessary in accordance
with Sec. 16, Rule 141 of the Rules of Court.

In the second exception, it is assumed that a decision on the merits had already
been rendered by the lower court and it is the civil aspect of the case which the offended
party is appealing. The offended party, who is not satisfied with the outcome of the
case, may question the amount of the grant or denial of damages made by the trial court
even without the participation of the Solicitor General.

In Mobilia Products, Inc. vs. Umezawa, 493 Phil. 85, 108 (2005), it was ruled that
in criminal cases, the State is the offended party. Private complainants interest is
limited to the civil liability arising therefrom. The explanation: Hence, if a criminal case
is dismissed by the trial court or if there is an acquittal, a reconsideration of the order of
dismissal or acquittal may be undertaken, whenever legally feasible, insofar as the
criminal aspect thereof is concerned and may be made only by the public prosecutor; or
in the case of an appeal, by the State only, through the Office of the Solicitor General.
The private complainant or offended party may not undertake such motion for
reconsideration or appeal on the criminal aspect of the case. However, the offended
party or private complainant may file a motion for reconsideration of such dismissal or
acquittal or appeal therefrom but only insofar as the civil aspect thereof is concerned.

In De la Rosa vs. Court of Appeals, 323 Phil. 596, 605 (1996) citing People vs.
Santiago, G.R. No. 80788, June 20, 1989, 174 SCRA 143, the Supreme Court held:
In a special civil action for certiorari filed under Section 1, Rule 65 of the Rules of Court
wherein it is alleged that the trial court committed a grave abuse of discretion
amounting to lack of jurisdiction or on other jurisdictional grounds, the rules state that
the petition may be filed by the person aggrieved. In such case, the aggrieved parties are
the State and the private offended party or complainant. The complainant has an
interest in the civil aspect of the case so he may file such special civil action questioning
the decision or action of the respondent court on jurisdictional grounds. In so doing,
complainant should not bring the action in the name of the People of the Philippines.
The action may be prosecuted in the name of said complainant.

The two exceptions are absent in these cases.

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DISPOSITIVE PORTION
WHEREFORE, premises considered, the motion to withdraw the informations
is GRANTED.

SO ORDERED.

Pasay City, April 27, 2011.

ELIZA B. YU
Judge

Copy furnished:
Hon. Leila De Lima
Secretary, Department of Justice,
P. Faura St., Manila City

Hon. Leah Tanodra Armamento


Undersecretary, Department of Justice,
P. Faura St., Manila City

Asst. City Pros. Luis Christopher Ballelos


Office of the City Prosecutor
Hall of Justice, Pasay City

Atty. Constantino Navarro III


Private Prosecutor
Cruz Cruz Navarro III
Suite 1804, The Centerpoint Condominium
J. Vargas Ave. cor. Garnet St.,
Ortigas Center, Pasig City

Atty. Renato Zosimo Evangelista


Defense Counsel
Crisologo Evangelista and Associates
Suite 207 and 209 Criscor Bldg.,
1258 Quezon Ave. cor. Scout Reyes St.,
Quezon City

Jaime Paule
Complainant
907 Jamaica St.,
Vermont Park, Antipolo City

Leonicia Marco Llarena


Accused
203 Mindanao Ave. Ext.,
Project 8, Quezon City

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