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[G.R. No. 159605. October 13, 2003]

vs. OFFICE OF THE OMBUDSMAN

THIRD DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated OCT 13 2003.

G.R. No. 159605.(Teodoro C. Borlongan vs. Office of the Ombudsman, Rafael B. Buenaventura, Alberto V. Reyes, Ma. Dolores B. Yuvienco, Candon B. Guerrero, Juan D. De Zuniga Jr., and Tomas S. Aure, Jr., respondents.)

This is a petition for certiorari assailing the Ombudsman's Decision dated June 24, 2003 in OMB-0-00-1651 dismissing the complaint filed by petitioner Teodoro C. Borlongan, former President of Urban Bank, Inc. (UBI), against Governor Rafael B. Buenaventura and other officials of the Bangko Sentral ng Piipinas (BSP), for violation of Articles 171 [1] cralaw (4) [2] cralaw and 171(5) [3] cralaw of the Revised Penal Code; Section 3(e) [4] cralaw of Republic Act No. 3019 (the Anti-Graft and Corrupt Practices Act, as amended); and Section 16 [5] cralaw of R.A. 7653 (the New Central Bank Act).

Records show that on April 26, 2000, in a Special Meeting of the Monetary Board (MB) of the BSP, MB Resolution No. 634 was passed ordering the closure of UBI and placing it under receivership of the Philippine Deposit Insurance Corporation pursuant to Section 30(a) of R.A. 7653.

The MB Resolution was passed on the basis of UBI's declaration of "bank holiday" or temporary suspension of its operations on April 25, 2000 in order to find solutions to its momentary illiquidity; and the Report prepared by the Supervision and Examination Sector of the BSP dated April 26, 2000 recommending the bank's closure and its being placed under receivership.

Thus, petitioner was constrained to file with the Office of the Ombudsman the complaint earlier mentioned.

Finding the complaint to be sufficient in form and substance, the Ombudsman issued an order directing respondent BSP officials to file their respective counter-affidavits.

On June 24, 2003, the Ombudsman rendered a Decision [6] cralaw dismissing the complaint on the ground that there is no probable cause to hold respondents liable for the crimes charged, thus:

"On the basis of the issues presented, complainant is in substance questioning the propriety of herein respondents-BSP officials' action, in placing the UBI and UDB under receivership and revoking the trust license of UII. It appears, however, that the right to question such actions belongs only to the stockholders representing the majority of the capital stock of 'the institution concerned and must be exercised within ten (10) days from receipt by the board of directors of the institution concerned of the questioned order.It is the court and not this Office which has the authority to decide such question under Section 30 of R.A. 7653.

xxx

"It also bears emphasis that the present complaint substantially contained issues that were practically the same with those in a previous case that was filed by Michael Defensor against the same respondents, among others, that was docketed as OMB 0-98-0622. It is to be noted that the said case was eventually dismissed after conducting the requisite preliminary investigation. While the complainant in the said case is different from the herein complainant, the fact is that they have an identity of interest. A close scrutiny of the records revealed that this case is a virtual reiteration, if not repetition of the allegations and charges in the said previous case.

"Worthy of emphasis also is the finding in the said case, hereunder quoted as follows:

'Indeed, if we proceed to act on this criminal case this time, which basically puts in question the individual act of the respondents leading to the issuance of the MB Resolutions and SES reports in question, we will inevitably be delving into the merits of these issuances. And if in case we come up with a finding that those who prepared and drafted said documents are at fault, then we are in effect putting into doubt the merits and wisdom of these submissions, which, this Office cannot legally and validly do so as said duty belongs exclusively to the regular courts pursuant to Section 30 of the New Central Bank Act.' "

Petitioner filed a motion for reconsideration of the above Decision but was denied in an Order [7] cralaw dated August 23, 2002.

Hence, this petition raising this sole issue: whether or not the Ombudsman committed grave abuse of discretion amounting to lack of or in excess of jurisdiction in dismissing petitioner's complaint for lack of probable cause.

Probable cause 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 is guilty of the crime for which he was prosecuted. Corollarily, the determination of the existence or absence of probable cause lies within the sound discretion of the Office of the Ombudsman. [8] cralaw

It can be readily discerned that the findings of the Ombudsman are essentially factual in nature. Accordingly, in assailing such findings and contending that the Ombudsman committed grave abuse of discretion, petitioner is actually raising questions of fact.

In resolving whether or not the Ombudsman committed grave abuse of discretion, a review of the evidentiary facts is necessary. This we cannot do for this Court is not a trier of facts. [9] cralaw

The determination whether a probable cause exists lies within the sound discretion of the Office of the Ombudsman. [10] cralaw We have more than once declared our reluctance to interfere in the exercise of such discretion absent any compelling reason. [11] cralaw In addition, we find no compelling reason to deviate from the ruling of the Ombudsman that the right to question the action of the BSP officials in closing the bank and placing it under receivership belongs only to the stockholders representing the majority of the capital stock of the bank.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

Very truly yours,

(Sgd.)JULIETA Y CARREON

Clerk of Court



Endnotes:

[1] cralaw "Art. 171. Falsification by public officer, employee; or notary or ecclesiastical minister."

[2] cralaw "Art. 171 (4) Making untruthful statements in a narration of facts."

[3] cralaw "Art. 171 (5) Altering true dates."

[4] cralaw "SEC. 3. Corrupt practices of public officers. -

(e)�������� Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions."

[5] cralaw "Sec. 16. Responsibility. - Members of the Monetary Board, officials, examiners, and employees of the Bangko Sentral who willfully violate this Act or who are guilty of negligence, abuses or acts of malfeasance or misfeasance or fail to exercise extraordinary diligence in the performance of his duties shall be held liable for any loss or injury suffered by the Bangko Sentral or other banking institutions as a result of such violation negligence, abuse, malfeasance, misfeasance or failure to exercise extraordinary diligence. x x x"

[6] cralaw Approved by then Ombudsman Aniano A. Desierto.

[7] cralaw Approved by Ombudsman Simeon V. Marcelo.

[8] cralaw Odin Security Agency, Inc. vs. Sandiganbayan, G.R. No 135912, September 17, 2001, 365 SCRA 351, citing Cruz, Jr. vs. People, 233 SCRA 439 (1994); Velasco vs. Casaclang, 294 SCRA 394 (1998).

[9] cralaw Benito vs. Commission on Elections, G.R. No. 134913, January 19, 2001, 349 SCRA 705.

[10] cralaw Odin Security Agency, Inc. vs. Sandiganbayan, supra.

[11] cralaw Presidential Commission on Good Government vs. Desierto , G.R. No. 140232, January 19, 2001, 349 SCRA 767.


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