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[G.R. No. 165463.� December 8, 2004]
SORIANO vs. LARA
THIRD DIVISION
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court dated DEC 8 2004.
G.R. No. 165463 (Hilario P. Soriano vs. Joseph Lara.)
Petitioner assails the May 11, 2004 decision [1] cralaw of the Court of Appeals in CA G.R. SP No. 76080, affirming the July 17, 2002 resolution of the Department of Justice upholding the resolution of the Office of the City Prosecutor of Manila which in turn dismissed petitioner's complaint for perjury against private respondent Joseph P. Lara.
On May 24, 2001, petitioner Hilario P. Soriano, President of the Rural Bank of San Miguel, Inc. (RBSM), filed with the Office of the City Prosecutor of Manila a complaint for perjury against Joseph P. Lara, then Technical Assistant to the Vice-President for Operations of the Bank. In his complaint, petitioner alleged that on April 13, 2000, private respondent executed an affidavit where he attested, among others, that part of the P12.6 Million emergency loan obtained by RBSM from Bangko Sentral ng Pilipinas (BSP) were transferred to the different branches of the Bank while the bulk thereof were disbursed by the main branch to pay its various obligations. That on June 2, 2000, Lara executed another affidavit where he falsely alleged that the P12.6 Million was delivered to petitioner's residence.
In his Counter-Affidavit, private respondent maintained that the second affidavit contained the true and correct narrative of what happened to the P12.6 Million emergency loan as corroborated by other RBSM officers.
On September 3, 2001, Assistant City Prosecutor Anabel Dollaga-Magabilin, dismissed petitioner's complaint holding that the first affidavit was not material in the petition for which it was submitted and that there is no evidence of a willful and deliberate assertion of falsehood in the execution of the second affidavit.
Displeased, petitioner filed a petition for review with the Department of Justice, but it too was dismissed. Then, on February 12, 2003, Acting DOJ Secretary Ma. Merceditas N. Gutierrez denied petitioner's Motion for Reconsideration.
Unperturbed, petitioner elevated the matter to the Court of Appeals via a petition for review under Rule 43 of the Rules of Court. There, he insisted, that, for purposes of preliminary investigation, the fact that private respondent's first affidavit contradicts his second affidavit was sufficient to indict private respondent for perjury. Likewise, he questioned the investigating prosecutor's finding that private respondent did not deliberately and willfully assert a falsehood in executing the second affidavit.
On May 11, 2004, the Court of Appeals rendered its decision affirming the resolution of the DOJ to wit:
"All told, petitioner has not shown any clear legal basis to warrant the overturning of the resolution to dismiss the complaint against respondent Lara.
"IN VIEW OF ALL THE FOREGOING, the instant petition is ordered DISMISSED , and the assailed resolutions are hereby AFFIRMED ." [2] cralaw
Subsequent motion for reconsideration was denied on September 14, 2004.
Thus, the instant petition which must necessarily fail.
The offense of perjury, as defined in Article 183 of the Revised Penal Code, is a willful and corrupt assertion of a falsehood under oath or affirmation administered by authority of law on a material matter. There are four (4) elements to consider in determining whether there is a prima facie case for perjury -
(a)���� That the accused made a statement under oath or executed an affidavit upon a material matter.
(b)���� That the statement or affidavit was made before a competent officer, authorized to receive and administer oath.
(c)���� That in that statement or affidavit, the accused made a willful and deliberate assertion of a falsehood.
(d)���� That the sworn statement or affidavit containing the falsity is required by law or made for a legal purpose (Diaz vs. People, 191 SCRA 86 [1990]).
As aptly observed by the Court of Appeals, the third essential element of willful and deliberate falsehood is wanting in this case because private respondent's assertion in the subject affidavit, that the amount of P12.6 million was delivered to petitioner's residence, was well corroborated by other high-ranking officers of RBSM.
Thus, we find no reversible error committed by the Court of Appeals in upholding the dismissal of the subject complaint.
Verily, a public prosecutor, by the nature of his office, is under no compulsion to file a criminal information where no clear legal justification has been shown, and no sufficient evidence of guilt nor prima facie case has been presented by the petitioner. We need only to stress that the determination of probable cause during a preliminary investigation or reinvestigation is recognized as an executive function exclusively of the prosecutor. An investigating prosecutor is under no obligation to file a criminal action where he is not convinced that he has the quantum of evidence at hand to support the averments. Prosecuting officers have equally the duty not to prosecute when after investigation or reinvestigation they are convinced that the evidence adduced was not sufficient to establish a prima facie case. Thus, the determination of the persons to be prosecuted rests primarily with the prosecutor who is vested with discretion in the discharge of this function. [3] cralaw
In Quiso v. Sandiganbayan, [4] cralaw we pointed out that:
�. . . [A] fiscal by the nature of his office, is under no compulsion to file a particular criminal information where he is not convinced that he has evidence to support the allegations thereof. Although this power and prerogative ... is not absolute and subject to judicial review, it would be embarrassing for the prosecuting attorney to be compelled to prosecute a case when he is in no position to do so, because in his opinion he does not have the necessary evidence to secure a conviction, or he is not convinced of the merits of the case.
WHEREFORE, the instant petition is hereby DENIED due course.
SO ORDERED.
Very truly yours,
(Sgd.) LUCITA ABJELINA-SORIANO
Asst. Division Clerk of Court
Endnotes:
[1] cralaw Penned by Associate Justice Conrado M. Vasquez, Jr. and concurred in by Associate Justices Eliezer R. De Los Santos and Rosalinda Asuncion-Vicente of the Eighth Division.
[2] cralaw Rollo, p. 30.
[3] cralaw Rodney Hegerty vs. Hon. Court of Appeals and Allan Nash, G.R. No. 154920, August 15, 2003.
[4] cralaw G.R. No. L-77120, 6 April 1987, 149 SCRA 108, 112, cited in D.M. Consunji, Inc. v. Esguerra, 328 Phil. 1168, 1180 [1996].
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