THIRD DIVISION

[ G.R. No. 143591. November 23, 2007 ]

TEODORO C. BORLONGAN, JR., CORAZON M. BEJASA,

ARTURO E. MANUEL, JR., ERIC L. LEE, P. SIERVO H.
DIZON, BENJAMIN DE LEON, DELFIN C. GONZALEZ,
JR., AND BEN YU LIM, JR., PETITIONERS, VS.
MAGDALENO M. PEÑA AND HON. MANUEL Q.
LIMSIACO, JR., AS JUDGE DESIGNATE OF THE
MUNICIPAL TRIAL COURT IN CITIES, BAGO CITY,
RESPONDENTS.

DECISION

NACHURA, J.:

For review is the Decision[1] of the Court of Appeals (CA) dated June 20,
2000 in CA-G.R. SP No. 49666 dismissing the petition for certiorari filed by
petitioners Teodoro C. Borlongan, Jr., Corazon M. Bejasa, Arturo Manuel, Jr.,
Benjamin de Leon, P. Siervo Dizon, Delfin C. Gonzalez, Jr., Eric Lee and Ben
T. Lim, Jr.

The factual and procedural antecedents of the case are as follows:

Respondent Magdaleno Peña instituted a civil case for recovery of agent’s

compensation and expenses, damages, and attorney’s fees,[2] against Urban
Bank and the petitioners, before the Regional Trial Court (RTC) of Negros
Occidental, Bago City. The case was raffled to Branch 62 and was docketed as
Civil Case No. 754. Respondent anchored his claim for compensation on the
contract of agency[3] allegedly entered into with the petitioners wherein the
former undertook to perform such acts necessary to prevent any intruder and
squatter from unlawfully occupying Urban Bank’s property located along
Roxas Boulevard, Pasay City. Petitioners filed a Motion to Dismiss[4] arguing
that they never appointed the respondent as agent or counsel. Attached to the
motion were the following documents: 1) a letter[5] dated December 19, 1994
signed by Herman Ponce and Julie Abad on behalf of Isabela Sugar Company,
Inc. (ISCI), the original owner of the subject property; 2) an unsigned
letter[6] dated December 7, 1994 addressed to Corazon Bejasa from Marilyn
G. Ong; 3) a letter[7] dated December 9, 1994 addressed to Teodoro
Borlongan and signed by Marilyn G. Ong; and 4) a Memorandum[8] dated
November 20, 1994 from Enrique Montilla III. Said documents were
presented in an attempt to show that the respondent was appointed as agent by
ISCI and not by Urban Bank or by the petitioners.

In view of the introduction of the above-mentioned documents, respondent

Peña filed his Complaint-Affidavit[9] with the Office of the City Prosecutor,
Bago City.[10] He claimed that said documents were falsified because the
alleged signatories did not actually affix their signatures, and the signatories
were neither stockholders nor officers and employees of ISCI.[11] Worse,
petitioners introduced said documents as evidence before the RTC knowing
that they were falsified.

In a Resolution[12] dated September 23, 1998, the City Prosecutor concluded

that the petitioners were probably guilty of four (4) counts of the crime of
Introducing Falsified Documents penalized by the second paragraph of Article
172 of the Revised Penal Code (RPC). The City Prosecutor concluded that the
documents were falsified because the alleged signatories untruthfully stated
that ISCI was the principal of the respondent; that petitioners knew that the
documents were falsified considering that the signatories were mere dummies;
and that the documents formed part of the record of Civil Case No. 754 where
they were used by petitioners as evidence in support of their motion to
dismiss, adopted in their answer and later, in their Pre-Trial Brief.
[13] Subsequently, the corresponding Informations[14] were filed with the
Municipal Trial Court in Cities (MTCC), Bago City. The cases were docketed
as Criminal Cases Nos. 6683, 6684, 6685, and 6686. Thereafter, Judge
Primitivo Blanca issued the warrants[15] for the arrest of the petitioners.

On October 1, 1998, petitioners filed an Omnibus Motion to Quash, Recall

Warrants of Arrest and/or For Reinvestigation.[16] Petitioners insisted that
they were denied due process because of the non-observance of the proper
procedure on preliminary investigation prescribed in the Rules of Court.
Specifically, they claimed that they were not afforded the right to submit their
counter-affidavit. They then argued that since no such counter-affidavit and
supporting documents were submitted by the petitioners, the trial judge
merely relied on the complaint-affidavit and attachments of the respondent in
issuing the warrants of arrest, also in contravention of the Rules. Petitioners
further prayed that the information be quashed for lack of probable cause.
Lastly, petitioners posited that the criminal case should have been suspended
on the ground that the issue being threshed out in the civil case is a prejudicial
question.

In an Order[17] dated November 13, 1998, the court denied the omnibus
motion primarily on the ground that preliminary investigation was not
available in the instant case --- which fell within the jurisdiction of the
MTCC. The court, likewise, upheld the validity of the warrant of arrest,
saying that it was issued in accordance with the Rules. Besides, the court
added, petitioners could no longer question the validity of the warrant since
they already posted bail. The court also believed that the issue involved in the
civil case was not a prejudicial question, and thus, denied the prayer for
suspension of the criminal proceedings. Lastly, the court was convinced that
the Informations contained all the facts necessary to constitute an offense.

Petitioners subsequently instituted a special civil action for Certiorari and

Prohibition with Prayer for Writ of Preliminary Injunction and TRO, before
the CA ascribing grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the MTCC in issuing and not recalling the warrants
of arrest, reiterating the arguments in their omnibus motion.[18] They,
likewise, questioned the court’s conclusion that by posting bail, petitioners
already waived their right to assail the validity of the warrant of arrest.

On June 20, 2000, the CA dismissed the petition.[19] Hence, the instant
petition for review on certiorari under Rule 45 of the Rules of Court.
Petitioners now raise before us the following issues:

A.

Where the offense charged in a criminal complaint is not

cognizable by the Regional Trial Court and not covered by the
Rule on Summary Procedure, is the finding of probable cause
required for the filing of an Information in court?

If the allegations in the complaint-affidavit do not establish

probable cause, should not the investigating prosecutor dismiss the
complaint, or at the very least, require the respondent to submit his
counter-affidavit?

B.

Can a complaint-affidavit containing matters which are not within

the personal knowledge of the complainant be sufficient basis for
the finding of probable cause?

C.

Where the offense charged in a criminal complaint is not

cognizable by the Regional Trial Court and not covered by the
Rule on Summary Procedure, and the record of the preliminary
investigation does not show the existence of probable cause,
should not the judge refuse to issue a warrant of arrest and dismiss
the criminal case, or at the very least, require the accused to
submit his counter-affidavit in order to aid the judge in
determining the existence of probable cause?
 D.

Can a criminal prosecution be restrained?

E.

Can this Honorable Court itself determine the existence of

probable cause?[20]

On August 2, 2000, this Court issued a Temporary Restraining Order (TRO)

[21] enjoining the judge of the MTCC from proceeding in any manner with
Criminal Cases Nos. 6683 to 6686, effective during the entire period that the
case is pending before, or until further orders of, this Court.

With the MTCC proceedings suspended, we now proceed to resolve the issues
raised.

Respondents contend that the foregoing issues had become moot and
academic when the petitioners posted bail and were arraigned.

We do not agree.

It appears that upon the issuance of the warrant of arrest, petitioners

immediately posted bail as they wanted to avoid embarrassment being then
the officers of Urban Bank. On the scheduled date for the arraignment, despite
the petitioners’ refusal to enter a plea, the court entered a plea of “Not Guilty.”

The earlier ruling of this Court that posting of bail constitutes a waiver of the
right to question the validity of the arrest has already been superseded by
Section 26,[22] Rule 114 of the Revised Rules of Criminal Procedure.
Furthermore, the principle that the accused is precluded from questioning the
legality of his arrest after arraignment is true only if he voluntarily enters his
plea and participates during trial, without previously invoking his objections
thereto.[23]
Records reveal that petitioners filed the omnibus motion to quash the
information and warrant of arrest, and for reinvestigation, on the same day
that they posted bail. Their bail bonds likewise expressly contained a
stipulation that they were not waiving their right to question the validity of
their arrest.[24] On the date of the arraignment, the petitioners refused to enter
their plea, obviously because the issue of the legality of the information and
their arrest was yet to be settled by the Court. This notwithstanding, the court
entered a plea of “Not Guilty.” From these circumstances, we cannot
reasonably infer a valid waiver on the part of the petitioners, as to preclude
them from raising the issue of the validity of the arrest before the CA and
eventually before this Court.

In their petition filed before this Court, petitioners prayed for a TRO to
restrain the MTCC from proceeding with the criminal cases (which the Court
eventually issued on August 2, 2000). Thus, we confront the question of
whether a criminal prosecution can be restrained, to which we answer in the
affirmative.

As a general rule, the Court will not issue writs of prohibition or injunction,
preliminary or final, to enjoin or restrain criminal prosecution. However, the
following exceptions to the rule have been recognized: 1) when the injunction
is necessary to afford adequate protection to the constitutional rights of the
accused; 2) when it is necessary for the orderly administration of justice or to
avoid oppression or multiplicity of actions; 3) when there is a prejudicial
question which is sub judice; 4) when the acts of the officer are without or in
excess of authority; 5) where the prosecution is under an invalid law,
ordinance or regulation; 6) when double jeopardy is clearly apparent; 7)
where the Court has no jurisdiction over the offense; 8) where it is a case of
persecution rather than prosecution; 9) where the charges are manifestly false
and motivated by the lust for vengeance; and 10) when there is clearly
no prima facie case against the accused and a motion to quash on that ground
has been denied.[25]

Considering that the issues for resolution involve the validity of the
information and warrant of arrest, and considering further that no waiver of
rights may be attributed to the petitioners as earlier discussed, we issued a
TRO on August 2, 2000 to give the Court the opportunity to resolve the case
before the criminal prosecution is allowed to continue. The nature of the
crime and the penalty involved (which is less than 4 years of imprisonment),
likewise, necessitate the suspension of the case below in order to prevent the
controversy from being mooted.

We now proceed with the main issues, viz.: 1) whether petitioners were
deprived of their right to due process of law because of the denial of their
right to preliminary investigation and to submit their counter-affidavit; 2)
whether the Informations charging the petitioners were validly filed and the
warrants for their arrest were properly issued; and 3) whether this Court can,
itself, determine probable cause.

As will be discussed below, the petitioners could not validly claim the right to
preliminary investigation. Still, petitioners insist that they were denied due
process because they were not afforded the right to submit counter-affidavits
which would have aided the court in determining the existence of probable
cause.[26] Petitioners also claim that the respondent’s complaint-affidavit was
not based on the latter’s personal knowledge; hence, it should not have been
used by the court as basis in its finding of probable cause.[27] Moreover,
petitioners aver that there was no sufficient evidence to prove the elements of
the crime. Specifically, it was not established that the documents in question
were falsified; that petitioners were the ones who presented the documents as
evidence; and that petitioners knew that the documents were indeed falsified.
[28] Petitioners likewise assert that at the time of the filing of the complaint-
affidavit, they had not yet formally offered the documents as evidence; hence,
they could not have “introduced” the same in court.[29] Considering the
foregoing, petitioners pray that this Court, itself, determine whether or not
probable cause exists.[30]

The pertinent provisions of the 1985 Rules of Criminal Procedure,[31] namely,

Sections 1, 3 (a) and 9(a) of Rule 112, are relevant to the resolution of the
aforesaid issues:
 SECTION 1. Definition. – Preliminary investigation is an inquiry
or proceeding for the purpose of determining whether there is
sufficient ground to engender a well-founded belief that a crime
cognizable by the Regional Trial Court has been committed and
that the respondent is probably guilty thereof, and should be held
for trial.[32]

SEC. 3. Procedure. – Except as provided for in Section 7 hereof,

no complaint or information for an offense cognizable by the
Regional Trial Court shall be filed without a preliminary
investigation having been first conducted in the following manner:

(a) The complaint shall state the known address of the respondent
and be accompanied by affidavits of the complainant and his
witnesses as well as other supporting documents, in such number
of copies as there are respondents, plus two (2) copies of the
official file. The said affidavits shall be sworn to before any
fiscal, state prosecutor or government official authorized to
administer oath, or, in their absence or unavailability, a notary
public, who must certify that he personally examined the affiants
and that he is satisfied that they voluntarily executed and
understood their affidavits.[33]

SEC. 9. Cases not falling under the original jurisdiction of the

Regional Trial Courts not covered by the Rule on Summary
Procedure. –

(a) Where filed with the fiscal. – If the complaint is filed directly
with the fiscal or state prosecutor, the procedure outlined in
Section 3 (a) of this Rule shall be observed. The Fiscal shall take
appropriate action based on the affidavits and other supporting
documents submitted by the complainant.[34]

Petitioners were charged with the offense defined and penalized by the second
paragraph of Article 172[35] of the Revised Penal Code. The penalty
imposable is arresto mayor in its maximum period to prision correccional in
its minimum period, or four (4) months and one (1) day to two (2) years and
four (4) months. Clearly, the case is cognizable by the Municipal Trial Court
and preliminary investigation is not mandatory.[36]

Records show that the prosecutor relied merely on the complaint-affidavit of

the respondent and did not require the petitioners to submit their counter-
affidavits. The prosecutor should not be faulted for taking this course of
action, because it is sanctioned by the Rules. To reiterate, upon the filing of
the complaint and affidavit with respect to cases cognizable by the MTCC, the
prosecutor shall take the appropriate action based on the affidavits and other
supporting documents submitted by the complainant. It means that the
prosecutor may either dismiss the complaint if he does not see sufficient
reason to proceed with the case, or file the information if he finds probable
cause. The prosecutor is not mandated to require the submission of counter-
affidavits. Probable cause may then be determined on the basis alone of the
affidavits and supporting documents of the complainant, without infringing on
the constitutional rights of the petitioners.

On the other hand, for the issuance of a warrant of arrest, the judge must
personally determine the existence of probable cause. Again, the petitioners
insist that the trial judge erred in issuing the warrant of arrest without
affording them their right to submit their counter-affidavits.

Section 2, Article III of the Constitution provides:

SEC. 2. The right of the people to be secure in their persons,

houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be
seized.
What the Constitution underscores is the exclusive and personal responsibility
of the issuing judge to satisfy himself of the existence of probable cause. But
the judge is not required to personally examine the complainant and his
witnesses. Following established doctrine and procedure, he shall (1)
personally evaluate the report and the supporting documents submitted by the
prosecutor regarding the existence of probable cause, and on the basis thereof,
he may already make a personal determination of the existence of probable
cause; and (2) if he is not satisfied that probable cause exists, he may
disregard the prosecutor’s report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a conclusion as to the
existence of probable cause.[37]

In determining probable cause for the issuance of the warrant of arrest in the
case at bench, we find nothing wrong with the procedure adopted by the trial
judge --- he relied on the resolution of the prosecutor, as well as the
supporting documents submitted by the respondent. There is no provision of
law or procedural rule which makes the submission of counter-affidavits
mandatory before the judge can determine whether or not there exists
probable cause to issue the warrant.

In light of the foregoing, it appears that the proper procedure was followed by
the prosecutor in determining probable cause for the filing of the
informations, and by the trial court judge in determining probable cause for
the issuance of the warrants of arrest. To reiterate, preliminary investigation
was not mandatory, and the submission of counter-affidavit was not necessary.

However, notwithstanding the proper observance of the procedure laid down

by the Rules, a closer scrutiny of the records reveals that the Informations
should not have been filed and the warrants of arrest should not have been
issued, because of lack of probable cause.

Probable cause, for purposes of filing a criminal information, has been

defined as such facts as are sufficient to engender a well-founded belief that a
crime has been committed and that the accused is probably guilty thereof.
[38] It is the existence of such facts and circumstances as would excite the
belief in a reasonable mind, acting on the facts within the knowledge of the
prosecutor, that the person charged was guilty of the crime for which he is to
be prosecuted.[39] A finding of probable cause needs only to rest on evidence
showing that, more likely than not, a crime has been committed and that it
was committed by the accused.[40]

On the other hand, we have defined probable cause for the issuance of a
warrant of arrest as the existence of such facts and circumstances that would
lead a reasonably discreet and prudent person to believe that an offense has
been committed by the person sought to be arrested.[41]

To accord respect to the discretion granted to the prosecutor and for reasons of
practicality, this Court, as a rule, does not interfere with the prosecutor’s
determination of probable cause. Otherwise, courts would be swamped with
petitions to review the prosecutor’s findings in such investigations.[42] In the
same way, the general rule is that this Court does not review the factual
findings of the trial court, which include the determination of probable cause
for the issuance of a warrant of arrest.[43] It is only in exceptional cases when
this Court may set aside the conclusions of the prosecutor and the trial judge
on the existence of probable cause, that is, when it is necessary to prevent the
misuse of the strong arm of the law or to protect the orderly administration of
justice.[44] The facts obtaining in the present case warrant the application of
the exception.

Petitioners were charged with violation of par. 2, Article 172 of the RPC or
Introduction of Falsified Document in a Judicial Proceeding. The elements of
the offense are as follows:

1. That the offender knew that a document was falsified by

another person.

2. That the false document is embraced in Article 171 or in any

subdivisions No. 1 or 2 of Article 172.
 3. That he introduced said document in evidence in any judicial
proceeding.[45]

The falsity of the document and the defendant’s knowledge of its falsity are
essential elements of the offense.[46]

The Office of the City Prosecutor filed the Informations against the petitioners
on the basis of the complaint-affidavit of the respondent, together with the
following attached documents: the motion to dismiss and answer filed by the
petitioners in Civil Case No. 754; petitioners’ pre-trial brief in said case; the
alleged falsified documents; a copy of the minutes of the regular meeting of
ISC during the election of the board; and the list of stockholders of ISC.
[47] On the basis of these documents and on the strength of the affidavit
executed by the respondent, the prosecutor concluded that probable cause
exists. These same affidavit and documents were used by the trial court in
issuing the warrant of arrest.

Contrary to the findings of the MTCC, as affirmed by the Court of Appeals,

we find the complaint-affidavit and attachments insufficient to support the
existence of probable cause. Specifically, the respondent failed to sufficiently
establish prima facie that the alleged documents were falsified. In support of
his claim of falsity of the documents, the private respondent stated in his
complaint-affidavit that Herman Ponce, Julie Abad and Marilyn Ong, the
alleged signatories of the questioned letters, did not actually affix their
signatures; and that they were not actually officers or stockholders of ISCI.
[48] He further claimed that Enrique Montilla’s signature appearing in another

memorandum addressed to respondent was forged.[49] These are mere

assertions, insufficient to warrant the filing of the complaint or the issuance of
the warrant of arrest.

It must be emphasized that the affidavit of the complainant, or any of his

witnesses, shall allege facts within their (affiants) personal knowledge. The
allegation of the respondent that the signatures of Ponce, Abad, Ong and
Montilla were falsified does not qualify as personal knowledge. Nowhere in
said affidavit did respondent state that he was present at the time of the
execution of the documents. Neither did he claim that he was familiar with the
signatures of the signatories. He simply made a bare assertion that the
signatories were mere dummies of ISCI and they were not in fact officers,
stockholders or representatives of the corporation. At the very least, the
affidavit was based on respondent’s “personal belief” and not “personal
knowledge.”[50] Considering the lack of personal knowledge on the part of
the respondent, he could have submitted the affidavit of other persons who are
qualified to attest to the falsity of the signatures appearing in the questioned
documents. One cannot just claim that a certain document is falsified without
further stating the basis for such claim, i.e., that he was present at the time of
the execution of the document or he is familiar with the signatures in
question. Otherwise, this could lead to abuse and malicious prosecution. This
is actually the reason for the requirement that affidavits must be based on the
personal knowledge of the affiant. The requirement assumes added
importance in the instant case where the accused were not made to rebut the
complainant’s allegation through counter-affidavits.

Neither can the respondent find support in the documents attached to his
complaint-affidavit. The minutes of the regular meeting, as well as the list of
stockholders, could have possibly shown that the signatories were not officers
or stockholders of the corporation. However, they did not at all show that the
questioned documents were falsified. In the letter allegedly signed by Ponce
and Abad, there was no representation that they were the president and
corporate secretary of ISCI. Besides, the mere fact that they were not officers
or stockholders of ISCI does not necessarily mean that their signatures were
falsified. They still could have affixed their signatures as authorized
representatives of the corporation.

True, a finding of probable cause need not be based on clear and convincing
evidence, or on evidence beyond reasonable doubt. It does not require that the
evidence would justify conviction. Nonetheless, although the determination of
probable cause requires less than evidence which would justify conviction, it
should at least be more than mere suspicion.[51] While probable cause should
be determined in a summary manner, there is a need to examine the evidence
with care to prevent material damage to a potential accused’s constitutional
right to liberty and the guarantees of freedom and fair play, and to protect the
State from the burden of unnecessary expenses in prosecuting alleged offenses
and holding trials arising from false, fraudulent or groundless charges.[52] It
is, therefore, imperative for the prosecutor to relieve the accused from the
pain and inconvenience of going through a trial once it is ascertained that no
probable cause exists to form a sufficient belief as to the guilt of the accused.
[53]

Considering that the respondent failed to adduce sufficient evidence to

support his claim that the documents were falsified, it follows that the
introduction of the questioned documents in Civil Case No. 754 is not an
offense punished by any provision of the Revised Penal Code or any other
law. The petitioners should not be burdened with court proceedings, more
particularly a criminal proceeding, if in the first place, there is no evidence
sufficient to engender a well-founded belief that an offense was committed.

WHEREFORE, the petition is GRANTED. The Decision of the Court of

Appeals, dated June 20, 2000, in CA-G.R. SP No. 49666
is REVERSED and SET ASIDE. The Temporary Restraining Order dated
August 2, 2000 is hereby made permanent. Accordingly, the Municipal Trial
Court in Cities, City of Bago, is ORDERED to DISMISS Criminal Case
Nos. 6683-86.

SO ORDERED.