G. R. No. 106522
October 23, 1992
CATALINO CASTAÑEDA, JR.,
E S O L U T I O N
Presiding Judge, Br. 17, RTC, Manila,
RONILO A. AZARRAGA, Asst. City
Prosecutor of Manila and CARLOS
VDA. DE GUZMAN,
The legal consequence of the provisional
of a criminal case, based on an Affidavit of Desistance executed by the
complaining witness, is the crux of this Petition for Certiorari and
On 27 May 1991,
an Information charging petitioner
Arnold Vegafria with violation of B. P. 22 was filed before the
Trial Court of Manila, docketed as Crim. Case No. 91-95052,
and subsequently raffled to Branch 17 presided by respondent Judge
On 4 December
1991, on the basis of an Affidavit
of Desistance executed by private respondent Carlos V. De Guzman, the
witness, stating, inter alia, that he misapprehended the facts
the issuance of the subject check, preceded by a Memorandum of
signed by him and accused-petitioner, respondent Judge issued an order
provisionally dismissing the criminal case.
More than six 
months later, on 17 June 1992,
private respondent De Guzman moved to revive the criminal action
that "only recently, upon re-examination of the records, it appears
there was in fact no error in accounting and that the accused has not
paid the amount due on the dishonored check contrary to what was
Quite obviously, petitioner did not satisfy the terms of his
pending resolution of the incident,
petitioner filed an "Urgent Motion for Permission to Depart for the
States." On 4 August 1992, respondent Judge granted the motion of
private respondent for the reinstatement of Crim. Case No. 91-95052,
on 6 August 1992 denied his urgent motion for leave to go abroad for
reason that his case was already revived. Hence, this petition.cralaw
principally argues that the provisional
dismissal of his case operated as an acquittal on the merits since its
basis was the Affidavit of Desistance executed by private respondent.
the latter admitted that he misapprehended the facts surrounding the
of the check; that there was an error in accounting, and that he was no
longer interested in pursuing the case. These unequivocal declarations,
petitioner contends, made it impossible for the prosecution to prove
guilt beyond reasonable doubt, hence, the motion for the provisional
of the case was inevitable.cralaw
We do not agree.
The order of respondent Judge
issued on 4 December 1991 stresses in no uncertain terms that the
of the case was provisional, i.e., the case could be revived at
some future date. Thus:
Lastly, the accused also took the witness
and declared that he was agreeable to the provisional dismissal of this
criminal case. The Court then informed the accused of the nature of a
dismissal, i.e., that such dismissal could mean a possible revival of
criminal action against him. Despite this explanation, the accused
on is conformity to the provisional dismissal of the same [Emphasis
believed that the case against him
should be dismissed with prejudice, he should not have agreed to a
dismissal. He should have pressed for a dismissal with prejudice, or
his constitutional right to a speedy trial so that the court would have
no alternative but to require the prosecution to present its evidence,
otherwise, the case would be dismissed with prejudice. But, instead of
assuming this stance, petitioner even took the witness stand and
agreed to the provisional dismissal of the case. In fact, as reflected
in the order in question, the court explicitly informed him of the
of a provisional dismissal, which could mean a possible revival of the
case against him. Since the case was dismissed provisionally with his
petitioner as accused therein cannot thereafter invoke double jeopardy
upon revival of the case.
Affidavit of Desistance on which
was based the provisional dismissal of the case was not the product or
precipitate move but the direct consequence of the Memorandum of
of the parties. Significantly, it may be noted that the Affidavit of
was executed on 4 December 1991, while the Memorandum of Agreement was
submitted two  days earlier. By the very terms of the Memorandum of
Agreement, it appears that private respondent was induced to
withdraw his complaint because petitioner represented that he would
all his obligations with the former through the covenants set forth
not later than 30 May 1992.
Petitioner apparently failed to settle his obligations on the due date.
Thus, the reinstatement of the criminal complaint against him.
it is unfair for petitioner to renege on his commitment which was the raison
d'etre for the provisional dismissal of his case.cralaw
being no abuse of discretion,
much less grave, committed by respondent Judge in issuing his
Order of 4 August 1992 which We hereby affirm, the instant petition is
dismissed for utter lack of merit.cralaw
Griño-Aquino and Medialdea, JJ.,
Cruz, J., is on leave.cralaw
Petition, Annex "D".
Ibid.; Annex "G".
Ibid.; Annex "H",
Rollo, p. 40.
See Que v. Cosico, G. R. No. 81861, 8 September 1989; 177 SCRA 410.
Ibid.; p. 49.