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FIRST DIVISION

[G.R. NO. 146017. February 18, 2004]

DR. ALBERTO NIDOY, SOTERO EMOCLING, MARCELINO MAMARIL, VICTORIANO SORIANO, PROCESO ESTOQUE, EDUARDO HERUELA and ALLAN SABANGAN, in their capacity as Vice Mayor and Members of the Sangguniang Bayan of Rosario, La Union, Petitioners, v. COURT OF APPEALS (10^th Division), HONORABLE OMBUDSMAN ANIANO A. DESIERTO, MAYOR JOSEPHINE FLORES and VIOLETA U. GARCIA, Respondents.

D E C I S I O N

YNARES-SANTIAGO, J.:

On April 23, 1999, Petitioners, the Vice Mayor and Members of the Sangguniang Bayan of the Municipality of Rosario, La Union, filed a criminal complaint for malversation, technical malversation, falsification of public document and violation of Republic Act No. 3019¹ against the respondents, Josephine Flores and Violeta U. Garcia, Mayor and Treasurer, respectively, of the same Municipality in the Office of the Ombudsman, docketed as OMB-1-99-0841.

Petitioners alleged that on November 18, 1998, the Municipality received from the Department of Budget and Management its share in the Tobacco Excise Tax Fund, under Republic Act No. 7171, in the amount of P1,351,000.00; that instead of depositing the same in the Municipalitys Account with the Land Bank of the Philippines, Agoo Branch, respondents deposited the money in the Municipalitys General Fund Account in the same bank; that the funds on deposit in the General Fund was almost totally spent such that as of December 21, 1998, the remaining balance was only P60,965.08;² that on August 3, 1998, respondents caused the transfer of the amount of P50,000.00 from the Tobacco Excise Tax Account to the General Fund;³ that the unauthorized disbursement of the Tobacco Excise Tax Fund was violative of Memorandum Circular No. 61-A,⁴ which provides that such fund may only be used for specific projects and after the proper appropriations ordinance or resolution from the Sangguniang Bayan.

Petitioners further averred that respondent treasurer falsified the Certification dated March 10, 1999 wherein she stated that the amount of P1,351,000.00, representing the municipal share in the excise taxes from Virginia Tobacco, was available because there was no such amount found in the account of the General Fund where the said amount had been deposited.⁵ ςrνll

In their Joint Counter-Affidavit, respondents denied the charges and clarified that what petitioners referred to as the Tobacco Excise Tax, or RA 7171, Account, was actually the Municipalitys account for both Trust Fund and its congressional share from RA 7171 excise taxes; that on the other hand, the amount of P1,351,000.00 was the municipalitys local government share from RA 7171 excise taxes which was treated as a special account under the General Fund;⁶ that the Municipal Treasurer correctly certified that the amount of P1,351,000.00 remained intact under Current Account No. 1392-1033-48, or the RA 7171 Special Account⁷ ; and the transfer of P50,000.00 from the Trust Fund to the General Fund did not constitute technical malversation.

On September 14, 1999, the Office of the Deputy Ombudsman for Luzon dismissed the complaint against the respondents on the ground of insufficiency of evidence.⁸ Petitioners filed a Motion for Reconsideration⁹ of the said Resolution, which was denied on February 23, 2000.¹⁰ ςrνll

On June 28, 2000, petitioners filed a special civil action for certiorari before the Court of Appeals, docketed as CA-G.R. SP No. 59422. The petition was dismissed for having been filed out of time.¹¹ The Court of Appeals held that petitioners should have filed a Petition for Review under Rule 43 of the Rules on Civil Procedure within fifteen days from notice of the assailed resolution.

Petitioner filed a Motion for Reconsideration,¹² however, the same was denied.

Hence, the instant Petition for Certiorari under Rule 65 of the Rules of Civil Procedure, raising the following issues:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

A.IN A PETITION TO QUESTION THE RESOLUTION OF THE OMBUDSMAN IN A CRIMINAL COMPLAINT FILED BEFORE HIM, WHAT RULE IS APPLICABLE IN ELEVATING THE SAME TO THE COURT OF APPEALS OR TO THE HONORABLE SUPREME COURT: RULE 43 OR RULE 65 OF THE 1997 RULES OF CIVIL PROCEDURE?chanroblesvirtualawlibrary

B.WHICH COURT SHALL A PETITION QUESTIONING THE RESOLUTION OF THE OMBUDSMAN IN A CRIMINAL COMPLAINT BE FILED: COURT OF APPEALS OR TO THE HONORABLE SUPREME COURT.¹³ ςrνll

The instant Petition for Certiorari should be dismissed. The proper action to file is an appeal by Petition for Review under Rule 45 of the Rules of Civil Procedure. Petitioners received a copy of the Resolution of the Court of Appeals on November 10, 2000; hence they had until November 25, 2000 within which to file a Petition for Review . The Petition for Certiorari filed by petitioners on December 6, 2000 cannot be a substitute for the lost remedy of appeal.¹⁴ ςrνll

WHEREFORE, in view of the foregoing, the instant Petition for Certiorari is DISMISSED.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Panganiban, Carpio andAzcuna, JJ., concur.

Endnotes:

¹ Otherwise known as Anti-Graft and Corrupt Practices Act.

² Annex D-1, Rollo, p. 52.

³ Annex J, Rollo, p. 66.

⁴ Amending Memorandum Circular No. 61, otherwise known as the Circular Prescribing the Guideline for the Implementation of RA 7171, Annex C, Rollo, pp. 48-50.

⁵ Annex G, Rollo, p. 63.

⁶ Annex N-2, Rollo, p. 75.

⁷ Annex N-4, Rollo, p. 77.

⁸ Rollo, p. 81.

⁹ Annex P, Rollo, pp. 83-87.

¹⁰ Annex Q, Rollo, p. 99.

¹¹ Id., p. 102; penned by Associate Justice Marina L. Buzon, concurred in by Associate Justices Ramon A. Barcelona and Edgardo P. Cruz.

¹² Id., pp. 106-109.

¹³ Rollo, p. 3.

¹⁴ Ong, et al. v. Court of Appeals, G.R. No. 142056, 19 April 2001, 356 SCRA 768, citing Bernardo v. Court of Appeals, G.R. No. 106153, 14 July 1997, 275 SCRA 413.