[G.R. No. 141790. June 7, 2006]

JOHNNIE C. SO versus THE COURT OF APPEALS AND VICTORINO ESERJOSE, ALLEGED ATTORNEY-IN-FACT OF GLORIA GLORIA

Third Division

Sirs/Mesdames:

Quoted hereunder, for your information is a resolution of the Third Division of this Court dated JUNE 7, 2006

G.R. No. 141790 (Johnnie C. So versus The Court of Appeals and Victorino Eserjose, Alleged Attorney-In-Fact of Gloria Gloria)

For review on certiorari are the Decision[1] and the Resolution[2] of the Court of Appeals in CA-G.R. SP No. 51105, which set aside the Orders[3] of the Regional Trial Court (RTC) of Quezon City, Branch 82, in Criminal Case No. Q-98-75989.

The facts are undisputed.

On March 17, 1998, an Information for estafa was filed against herein petitioner, Johnnie C. So.  It reads:

That sometime in the month of October 1997, in Quezon City, Philippines, the said accused, did then and there willfully, unlawfully and feloniously defraud GLORIA GLORIA in the following manner, to wit: the said accused drew, made out and issued to complainant the following postdated ALLIED BANK checks, to wit:

CHECK NO.

DATE OF CHECK

        AMOUNT

35 0214461

         11-02-97

P     300,000.00

35 0214455

         11-29-97

     1,400,000.00

35 0214454

         11-29-97

        600,000.00

payable to the order of CASH valued in the total amount of P2,300,000.00, Philippine Currency, simultaneously with exchange of cash from the offended party; that upon presentation of the said checks to the bank for payment, the same were dishonored and payment thereof refused for the reasons 'ACCOUNT CLOSED' and said accused notwithstanding due notice to him by the said offended party of such dishonor of the said checks, failed and refused to deposit the necessary amount to cover the amount of the checks within three (3) days from receipt of the said notice, to the damage and prejudice of the said GLORIA GLORIA, represented herein by her attorney-in-fact VICTORINO E. ESERJOSE in the aforesaid amount of P2,300,000.00, Philippine Currency.

CONTRARY TO LAW.[4]

Petitioner moved to quash the Information on the ground that the charge does not constitute an offense.  The RTC, in its Order dated August 17, 1998, quashed the Information and dismissed the case against petitioner.  Respondent Victorino Eserjose filed a motion for reconsideration, which the trial court denied in its Order of October 5, 1998.  Unfazed, Eserjose filed a second motion for reconsideration, which the RTC again denied in its November 25, 1998 Order.

On petition for certiorari, however, the Court of Appeals ordered the trial court to reinstate the criminal case against petitioner, thus:

WHEREFORE, in view of all the foregoing, the petition is hereby granted and respondent court's Orders of August 17, 1998, October 5, 1998 and November [25], 1998, are set aside.  Respondent court, Branch 82 of the Regional Trial Court of Quezon City, is ordered to reinstate Criminal Case No. Q-98-75989 entitled "People of the Philippines vs. Johnnie C. So" for further appropriate proceedings.

SO ORDERED.[5]

Aggrieved, petitioner moved for reconsideration.  His motion was denied for lack of merit.  Hence, the instant petition anchored on the following grounds:

I.   THERE WAS NO VALID INFORMATION FILED IF "THE REPRESENTATIVE OF A PRIVATE COMPLAINANT FAILED TO SHOW, PRESENT OR FURNISH THE INVESTIGATING PROSECUTOR A COPY OF A SPECIAL POWER OF ATTORNEY TO PROSECUTE".  THE OPERATIVE FACT OF AUTHORITY IS THE AUTHORITY ITSELF OR THE SPECIAL POWER OF ATTORNEY AND NOT AN AFFIDAVIT OF THE ATTORNEY-IN-FACT.

II.  COROLLARY TO THE ABOVE ISSUE, THE HON. RTC JUDGE OF BR. 82, QUEZON CITY DID NOT ABUSE HIS DISCRETION WHEN HE DISMISSED THE CASE WITHOUT PREJUDICE TO RE-FILING AN INFORMATION AFTER THE INVESTIGATING FISCAL WILL HAVE PASSED UPON THE AUTHENTICITY OF AN ALLEGED SPECIAL POWER OF ATTORNEY THAT WAS PRODUCED MORE THAN FOUR (4) MONTHS AFTER FILING OF THE INFORMATION WHEN ITS ABSENCE HAS BEEN BROUGHT ON SEVERAL OCCASIONS TO THE ATTENTION OF THE PROSECUTORS AND THE COURT FOUR (4) MONTHS EARLIER.

III.  A SECOND MOTION FOR RECONSIDERATION DOES NOT TOLL THE RUNNING OF THE PERIOD WITHIN WHICH TO FILE UNDER SECTION 4, RULE 65 OF THE RULES OF CIVIL PROCEDURE.[6]

Petitioner contends that Victorino Eserjose has no authority to institute the complaint for estafa on behalf of the offended party.  Petitioner stresses that the offended party herself must file the complaint in order to establish the element of damage.  Lastly, petitioner avers that the Court of Appeals should have dismissed outright the petition for certiorari for having been filed out of time, as the second motion for reconsideration does not toll the running of the prescriptive period.

For his part, respondent Eserjose, through his principal, Gloria Gloria, countered that a Special Power of Attorney authorized him to file the estafa case against petitioner.  He argues that probable cause is not negated by the simple fact that the document itself was not in his possession during the preliminary investigation.  Lastly, he points out that petitioner failed to promptly assail before the RTC the alleged irregularity of the second motion for reconsideration.

After carefully weighing the parties' submissions, we resolve to deny the petition.

Anent the first and second issues, we must stress that it is not necessary that the offended party file the complaint for purposes of preliminary investigation by the fiscal.  The rule is that unless the offense subject of the complaint is one that cannot be prosecuted de oficio, any person may file the complaint for preliminary investigation.[7]  Undoubtedly, estafa is not an offense that cannot be prosecuted de oficio.  Thus, with or without a special power of attorney, Eserjose, or any person for that matter, may properly file the complaint for estafa allegedly committed by herein petitioner against Gloria.

With respect to the third issue, the rule is that a second motion for reconsideration of a judgment or final order is a prohibited pleading.[8]  As such, a second motion for reconsideration does not suspend the period for filing a petition for certiorari.[9]

In this particular case, Eserjose had filed in the RTC two motions for reconsideration of the August 17, 1998 Order, which quashed the Information against petitioner.  However, for purposes of determining the prescriptive period for filing the petition for certiorari with the Court of Appeals, the reckoning point is the date of receipt of the notice of denial of the first motion for reconsideration.

Records show that Eserjose received the notice of the RTC's denial of the first motion for reconsideration on October 7, 1998, while the petition for certiorari was filed in the Court of Appeals on February 15, 1999, a lapse of about 130 days.  Clearly, the petition should have been dismissed outright for having been filed out of time.

Nonetheless, we sustain the findings of the Court of Appeals on the issue of who has authority to institute a complaint for estafa.  As already discussed, we agree with the appellate court that Eserjose had authority to file the complaint on behalf of Gloria.  The trial court gravely erred in quashing the Information and dismissing the criminal case on the sole ground that the complaint for estafa was not filed by the offended party herself, but by her attorney-in-fact. It is, therefore, only proper that in the interest of substantial justice, the grave error of the trial court be corrected now, and that the criminal case for estafa against petitioner be reinstated.

WHEREFORE, the petition is DENIED.  The assailed Decision and the Resolution of the Court of Appeals in CA-G.R. SP No. 51105, which set aside the Orders dated August 17, 1998, October 5, 1998, and November 25, 1998, of the Regional Trial Court (RTC) of Quezon City, Branch 82, in Criminal Case No. Q-98-75989, are AFFIRMED.  The RTC of Quezon City, Branch 82, is hereby ordered to REINSTATE Criminal Case No. Q-98-75989, and continue appropriate proceedings without further delay.

Costs against petitioner.

SO ORDERED.

Very truly yours,

(Sgd.) LUCITA ABJELINA-SORIANO

Clerk of Court


[1] Rollo, pp. 24-35.  Penned by Associate Justice Corona Ibay-Somera, witb Associate Justices Oswaldo D. Agcaoili, and Andres B. Reyes, Jr. concurring.

[2] Id. at 44-45.

[3] Dated August 17, 1998, October 5, 1998, and November 25, 1998.

[4] Rollo, p. 25.

[5] Id. at 35.

[6] Id. at 14.

[7] Salazar v. People, G.R. No. 149472, October 15, 2002, 391 SCRA 162, 175.

[8] RULES of COURT, Rule 37, Sec. 5. Second motion for new trial. - x x x

          No party shall be allowed a second motion for reconsideration of a judgment or final order.

[9] University of Immaculate Conception v. Secretary of Labor and Employment, G.R. No. 143557, June 25, 2004, 432 SCRA 601, 608.