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[ G.R. No. 137897. June 9, 1999]

IGNACIO S. SAPALO vs. SANDIGANBAYAN, et al.

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUN 9, 1999.

G.R. No. 137897 (Ignacio S. Sapalo vs. Sandiganbayan, Third Division, Aniano A. Desierto, Emmanuel M. Laureano, Angel C. Mayoralgo, Jr., Abelardo L. Aportadera, Jr. and Benjamin Irao, Jr.)

Petitioner seeks to nullify the resolution of the Office of the Ombudsman disapproving the recommendation of the Office of the Special prosecutor, thus declaring the presence of probable cause to hold petitioner liable under Section 3(e) of the Anti-Graft and Corrupt Practices Act.

The present controversy stemmed from a complaint filed by the representative of CEROILFOOD, private respondent Benjamin Irao, Jr., against Ignacio S. Sapalo as Director of the Bureau of Patents Trademarks and Technology Transfer, for violation of the provisions of Section 5(a) of Republic Act No. 6713 and of Section 3(e) and (f) of republic Act 3019. The complaint alleged that petitioner withheld, through an order, the publication of CEROILFOOD's trademark applications which he had previously approved.

On June 26, 1998, the first assailed resolution was issued finding probable cause to hold petitioner liable for violation of Section 3(e) of R.A. 3019 and on the same date an information was prepared which upon approval of the Ombudsman on July 24, 1998 was thereafter filed with the Sandiganbayan.

On motion for reinvestigation, the Sandiganbayan allowed petitioner to file a motion for reconsideration with the Office of the Prosecutor.

On September 16, 1998, the Special Prosecutor issued a memorandum addressed to the Office of the Ombudsman recommending the dismissal of the case.

On January 29, 1999, the Office of the Ombudsman issued the second assailed resolution which disapproved the memorandum of the Special Prosecutor.

Thus, the instant petition.

The Court finds no grave abuse of discretion committed by the Ombudsman when it disregarded the recommendation of the Special Prosecutor for he is not beholden to adopt the latter's recommendation. When a prosecutor is deputized, he comes under the "supervision and control of the Ombudsman which means he is subject to the power of the Ombudsman to direct, review, approve, reverse, or modify his findings (Lastimosa vs. Vasquez, 243 SCRA 497 [1994]).

The Court finds no cogent reason to set aside the assailed resolution since the presence or absence of the elements of the crime are evidentiary in nature and are matters of defense, the truth of which can be best passed upon after a full blown trial on the merits (Olivarez vs. Sandiganbayan, 248 SCRA 703 [1995]).

Lastly, it is beyond the ambit of this Court to review the exercise of discretion of the Ombudsman in prosecuting or dismissing a complaint filed before it (Alba vs. Nitorreda, 254 SCRA 753 [1996]).

WHEREFORE, petition id dismissed.

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

Clerk of Court

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