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[G.R. No. 126128.July 18, 2001]

LORIA vs. HON OMBUDSMAN ANIANO DESIERTO et al.

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUL 18 2001.

G.R. No. 126128(Perfecto M. Loria vs. Hon. Ombudsman Aniano Desierto, Reynaldo Abundo and Camarines Norte Electric Cooperative, represented by its Acting General Manager/Board Chairman.)

Before us is a petition for review seeking to annul the Memorandum dated June 6, 1996 of the Office of the Special Prosecutor with the approval thereon of respondent Ombudsman. Said Memorandum which is in connection with Case No. OMB-0-93-1466 entitled 'Reynaldo Abundo vs. Judge Luis D. Dictado, Atty. Perfecto M. Loria, et al., calls for the filing of an Information in the Sandiganbayan for violation of Section 3(e) of R.A. No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act for acts arising from an Order dated December 12, 1991 of Judge Luis D. Dictado of the Regional Trial Court (RTC) of Daet, Branch 39, in Criminal Case No. 4982, for the issuance of a writ of execution.

Criminal Case No. 4982 is an estafa case filed at the instance of private respondent Camarines Norte Electric Cooperative (CANORECO, for brevity) against its former General Manager Francisco Timoner, Jr., its employees Zonie Jardinero, Orlando Vjspo, Zenaida Maigue, and businessman Reynaldo Tolentino, Sr. Judge Luis D. Dictado was the then presiding judge of RTC of Daet, Branch 39 to which the said estafa case was raffled. Pending trial, Francisco Timoner, Jr. was suspended and later on removed as General Manager of CANORECO.

On June 1, 1990. the trial court rendered a decision acquitting all the accused, except Orlando Vispo for the crime of estafa on the ground that the prosecution failed to prove their guilt beyond reasonable doubt. In addition, the trial court ordered private respondent CANORECO to reinstate Timoner as General Manager and to pay backwages.

Aggrieved with the order to reinstate Timoner and to pay backwages, CANORECO appealed to the Court of Appeals.

While the appeal was pending Reynaldo Tolentino, Sr. filed on November 12, 1991, a Motion for Execution with the trial court alleging that CANORECO completely disregarded his payments in the total amount of Four Hundred Twenty-Seven Thousand Six Hundred Fifty Pesos (P427,650.00) to the Calayan Ice Plant.

On December 12, 1991 Judge Dictado as the then presiding judge of the RTC of Daet, Branch 39 issued an Order granting Tolentino's Motion for Execution, and in compliance with the said Order, petitioner Perfecto M. Loria, as Branch Clerk of Court thereof, issued the corresponding Writ of Execution on December 13, 1991.

Meanwhile, the Court of Appeals, acting on CANORECO's petition for certiorari with prayer for a restraining order, docketed as CA-GR SP No. 26879 and filed on December 20, 1991, issued on the same day a temporary restraining order (TRO) restraining the enforcement of the assailed Writ of Execution. However, the trial court received the said TRO only on December 23, 1991, and by then the DBP Daet Branch where CANORECO has a substantial bank deposit had already released therefrom the amounts of One Hundred Thousand Pesos (P100,000.00) and Fifty Thousand Pesos (P50,000.00) to Reynaldo Tolentino while the remaining amount of Two Hundred Seventy-Seven Thousand Six Hundred Fifty Pesos (P277,650.00) was placed in the newly opened bank account of Calayan Ice Plant with said DBP Daet Branch at the instance of Tolentino.

Thereafter, on June 9, 1993 Reynaldo Abundo, as General Manager of CANORECO, filed with the Office of the Ombudsman an affidavit-complaint against Judge Luis O. Dictado, Perfecto Loria, Edgardo De Los Reyes, Demetrio Botante and Reynaldo Tolentino, Sr. for violation of Section 3(e) and (f) of Republic Act No. 3019, as amended, arising from the issuance of the Order of the Writ of Execution. Finding a prima facie case, an Information was subsequently filed by the Office of the Ombudsman with the Sandiganbayan, docketed as Criminal Case No. 23431 for violation of Section 3(e) of R.A. 3019, as amended against Judge Dictado, Loria, De Los Reyes, Tolentino and Bolante. The petitioner was served on August 5, 1996 a warrant of arrest issued by the Sandiganbayan.

Hence, this petition.

In the instant petition, petitioner prays that respondent Ombudsman be ordered to cease and desist from further proceedings in OMB-0-93-1466 and that the said Memorandum of the Office of the Ombudsman dated June 6, 1996 be set aside with respect to the petitioner.

Petitioner Perfecto M. Loria contends that, as an employee of the judiciary, the respondent Ombudsman has no jurisdiction to initiate any investigation of any offense pertaining to, and arising from the performance of his ministerial and official duty as Branch Clerk of Court of the RTC Daet.

The record shows, however, that RTC Judge Luis D. Dictado was dismissed on June 28, 1993 in connection with another administrative case, that is, A.M. No. RTJ-86-50 entitled "Adelaida Felongco v. Judge Luis D. Dictado."

Settled is the rule that a preliminary investigation conducted by the prosecutor for the purpose of determining whether a prima facie case exists to warrant the prosecution of the accused is terminated upon the filing of the information in the proper court (Crespo v. Mogul, 151 SCRA 462 [1987]). In the case at bar, the anti-graft case is now pending with the Sandiganbayan, thus petitioner's bid to enjoin public respondent Ombudsman from taking further proceedings in OMB-0-93-1466 and to reverse and set aside the latter's Memorandum dated June 6, 1996 which approved the filing of the Information against petitioner, et al. is now moot and academic. The preliminary investigation conducted by the Office of the Ombudsman in OMB-0-93-1466 for the purpose of determining whether a prima facie case exists to warrant the prosecution of petitioner and his co-accused was terminated upon the filing of the Information in Criminal Case No. 23431 in the Sandiganbayan. Any disposition of the said anti-graft case is now within the jurisdiction and control of the Sandiganbayan. The Sandiganbayan which is an indispensable party was not impleaded by the petitioner.

WHEREFORE, the instant petition is hereby DENIED.

Very truly yours,

(Sgd.) TOMASITA B. MAGAY-DRIS
Clerk of Court

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