A.M. No. MTJ-95-1065




Manila FIRST DIVISION A.M. No. MTJ-95-1065 January 20, 1998 JOSEPHINE R. TULIAO, complainant, vs. JUDGE JOSE O. RAMOS, Municipal Trial Court, Echague, Isabela, respondent. BELLOSILLO, J.: On 3 March 1995 a criminal complaint for homicide was filed by the Philippine National Police against a certain Gallego Adona alias "Pogi" for the killing of Randy Ramos Tuliao, son of complainant herein, docketed as Crim. Case No. 4293. On 8 March 1995 respondent Jose Judge O. Ramos, MTC of Echague, Isabela, conducted the preliminary investigation. In his Order dated 16 March 1995 respondent Judge directed the accused Gallego Adona to submit his counter-affidavit which he did on 24 March 1995. On 3 April 1995, finding probable cause, respondent issued a warrant of arrest against the accused, and on the same day approved his personal bail bond in the amount of P20,000.00 posted on 23 March 1995 by the Commonwealth Insurance Company (COMMONWEALTH) purportedly signed by its Senior Vice President Rolando B. Francisco.1 On 8 April 1995 the parents of deceased Randy Tuliao informed respondent Judge that the bail bond of the accused was falsified. They presented a letter of a certain Maximo Parlan, Operations Manager of COMMONWEALTH, stating that the bail bond came from a spurious source considering that COMMONWEALTH had ceased issuing bail bonds since 24 February 1992. In view of the adverse information regarding the bond, respondent Judge ordered the cancellation of the bond and directed the immediate arrest of the accused. He also directed the NBI of Cabanatuan City to investigate the persons responsible for the procurement and filing of the questionable bond. 2 On 11 July 1995 complainant Josephine R. Tuliao, mother of the deceased Randy Tuliao, filed an administrative complaint against Judge Jose O. Ramos charging him with negligence in approving a fraudulent bail bond, failure to terminate the preliminary investigation of the case within the period prescribed in Sec. 3 of Rule 112, and, failure to transmit the records of the case to the Provincial Prosecutor as required in Sec. 5 of Rule 112. In support of her complaint, Tuliao submitted the affidavit dated 13 August 1992 of Rolando B. Francisco, former Senior Vice President of COMMONWEALTH, stating that he worked for COMMONWEALTH only until 17 August 1992 so that he could not have signed the bail bond on 23 March 1995 and that the signature appearing on the bail bond to be that of "Rolando B. Francisco" was a forgery considering that he did not sign it; neither did it have any semblance of his genuine signature.3 Complainant also presented in evidence the following documents: (a) Certificate of Authority issued by the Insurance Commission dated 1 July 1993 certifying that effective 1 July 1992 the authority of COMMONWEALTH to issue bail bonds had already been withdrawn; (b) Affidavit of publication dated 14 July 1992 issue by Lourdes Diaz, Classified Ads Manager of the Philippine Daily Inquirer, stating that a notice had been published in its issue of 15 June 1992 that COMMONWEALTH had ceased underwriting and issuing bail bonds since 11 December 1991; (c) Certification dated 6 May 1992 issued by Celso M. Gabalones, Chief, Documentation Unit, Supreme Court, that the authority of COMMONWEALTH to issue bail bonds was only valid until 24 February 1992. Complainant also contended that respondent Judge failed to resolve the case of her son and to transmit the record of his investigation to the Provincial Prosecutor within the prescribed period. The preliminary investigation was initiated as early as 8 March 1995 but the case remained pending with him without any action taken thereon. In his comment of 22 August 1995 respondent explained that the personal bail bond issued by COMMONWEALTH appeared on its face to be in order, complete with a certification issued by the Supreme Court dated 2 March 1995 that COMMONWEALTH had authority to issue bail bonds, a Certificate of Authority from the Insurance Commission and a Certification issued by the Clerk of Court of the RTC of Tarlac, Tarlac, that COMMONWEALTH had no pending liability with that court. Respondent Judge insisted that if indeed the bond was fake his approval was simply an honest mistake. 4 Respondent Judge claimed that the accused filed his bail bond as early as 28 March 1995 but respondent did not immediately approve it because, as a safeguard to ensure that COMMONWEALTH was not blacklisted, he ordered the brother of the accused to secure first a certification from the Clerk of Court of the RTC of Tarlac where the bond was prepared that COMMONWEALTH was not blacklisted; and, he (respondent) approved the bond only after receiving the certification.5 As to the alleged delay in resolving the case and his failure to transmit the record to the Provincial Prosecutor, respondent Judge averred that the preliminary investigation was not completed as there were matters that needed clarification; consequently, he set the case for hearing on 7 April 1995 so that he could ask clarificatory questions to the parties and their witnesses. But since the accused had gone in hiding the hearing for the clarificatory questions did not push through, so that the delay, if any, was not due to his fault. On 13 December 1995 this Court referred the administrative case of respondent Judge to Acting Executive Judge Henedino P. Eduarte, RTC, Echague, Isabela, for investigation. In his report and recommendation of 18 December 1996 Judge Eduarte found that the charges against respondent were fully substantiated by the evidence presented and were sufficient to warrant the dismissal of respondent Judge. However, at that time, respondent Judge had already retired so that the only recourse seemed to be to forfeit his retirement benefits. We hold respondent Judge administratively liable. The surety bond filed by the accused together with its attachments was fake. This is admitted by respondent in his comment although he rationalizes that he committed an honest mistake as the surety bond appeared to be in order and complete on its face. But the facts show otherwise. As early as September 1989 the lower courts received from the Office of the Court Administrator a list of insurance companies authorized to do business with the courts as well as those ordered to ceases and desist from accepting insurance risks of any kind. On such insurance company not authorized to transact business with the courts — as it was not issued any clearance — was COMMONWEALTH, of which fact respondent was charged with notice. A brief look at the mere appearance of the bail bond posted by the accused Adona readily shows that the bond is miserably lacking insofar as the requirements set forth in par. (4), Sec. E, Ch. VI, particularly subpar (a), of the Manual for Clerks of Court6 are concerned: 4. Specific Requisites. — (a) For Surety Bond. — In accepting a surety bond, the Clerk of Court should see to it that the following requisites are complied with, otherwise, the bond should be rejected; (1) Photographs of Accused. — It shall be obligatory on the part of surety and bonding companies issuing such bond to attach photographs (face, left and right profiles), passport size, recently taken of the accused on all copies of the corresponding personal bailbond to be issued or posted. (2) Affidavit of Justification. — The bond shall be accompanied by an affidavit of justification to include a statement to the effect that the company has no pending obligation demandable and outstanding in any amount to the Government or any of its agencies as of the last day of the month preceding the date the bond is issued or posted. (3) Clearance from the Supreme Court. — Every bond shall be accompanied by a clearance from the Supreme Court showing that the company concerned is qualified to transact business which is valid only for thirty (30) days from the date of its issuance. (4) Certificate of Compliance with OIC Circular. — The bond shall be accompanied by a verified certification to the effect that the bond form used has been duly registered with the Insurance Commission; that the same has been entered and recorded in the Bond Registry Book of the company concerned in compliance with Circular No. 66, dated 19 September 1966, of the OIC and that said bond has not been canceled. (5) Authority of Agent. — In case the bond is issued thru a branch or thru an agent, a copy of the authority or power of attorney shall be submitted to the Clerk of Court for filing, together with the schedule of limits of its authority.ℒαwρhi৷ (6) Current Certificate of Authority. — The bond shall be accompanied by a current certificate of authority issued by the Insurance Commission with the financial statement (OIC Form No. 1) showing the maximum underwriting capacity of the company. Clearly, the above requisites were not all complied with. Even assuming that the clearance from the Supreme Court and the certificate of authority by the Insurance Commission were all valid and authentic, the number of lacking documents belies the claim of respondent Judge that he only committed an honest mistake as the bond submitted was apparently in order. A careful review of the records shows that the supporting documents required to be attached to the surety bond are all plain xerox copies. Consequently, it cannot be denied that respondent was indeed negligent. Prudence would have dictated that respondent should demand the presentation of the originals of the required documents before approving the bail bond. Respondent Judge argued that he approved the bond only after receiving the certification of the Clerk of Court of the RTC of Tarlac dated 28 March 1995 that COMMONWEALTH was not blacklisted. But, the certification only states that COMMONWEALTH "had no pending liability in any branch of the RTC, Tarlac, with respect to bail bonds issued by it in that court." Contrary to the claim of respondent, the certification did not state that COMMONWEALTH was not blacklisted, much less that it was authorized to issue bail bonds. The explanation of respondent that the bail bond dated 23 March 1995 was filed on 28 March 1995 is almost incredible since the accused was arrested only on 3 April 1995. For, why would the accused procure a bail bond before he was arrested unless there was connivance between him and respondent Judge as to enable the former to know in advance that the amount of bail bond would be fixed at P20,000.00. As to the delay in resolving the preliminary investigation, complainant argued that respondent Judge violated Secs. 3 and 5 of Rule 112 which provide: Sec. 3. Procedure. — Except as provided for in Section 7 hereof, no complaint or information for an offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted in the following manner: (a) The complaint shall state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents, in such number of copies as there are respondents, plus two (2) copies for the official file. The said affidavits shall be sworn to before any fiscal, state prosecutor or government official authorized to administer oath, or, in their absence or unavailability, a notary public, who must certify that he has personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits; (b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss the same if he finds no ground to continue with the inquiry, or issue a subpoena to the respondent, attaching thereto a copy of the complaint, affidavits and other supporting documents. Within ten (10) days from receipt thereof, the respondents shall submit counter-affidavits and other supporting documents. He shall have the right to examine all other evidence submitted by the complainant; (c) Such counter-affidavits and other supporting evidence submitted by the respondent shall also be sworn to and certified as prescribed in paragraph (a) hereof and copies thereof shall be furnished by him to the complainant; (d) If the respondent cannot be subpoenaed, or if subpoenaed does not submit counter-affidavits within the ten (10) day period, the investigating officer shall base his resolution on the evidence presented by the complainant; (e) If the investigating officer believes that there are matters to be clarified, he may set a hearing to propound clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to be present but without the right to examine or cross-examine. If the parties so desire, they may submit questions to the investigating officer which the latter may propound to the parties or witnesses concerned; and, (f) Thereafter, the investigation shall be deemed concluded, and the investigating officer shall resolve the case within ten (10) days therefrom. Upon the evidence thus adduced, the investigating officer shall determine whether or not there is sufficient ground to hold respondent for trial. Sec. 5. Duty of investigating judge. — Within ten (10) days after the conclusion of the preliminary investigation, the investigating judge shall transmit to the provincial or city fiscal for appropriate action, the resolution of the case, stating briefly the findings of facts and the law supporting his action, together with the entire records of the case, which shall include: (a) the warrant, if the arrest is by virtue of a warrant; (b) the affidavits and other supporting evidence of the parties; (c) the undertaking or bail of the accused; (d) the order of release of the accused and cancellation of his bail bond, if the resolution is for the dismissal of the complaint. Should the provincial or city fiscal disagree with the findings of the investigating judge on the existence of probable cause, the fiscal's ruling shall prevail, but he must explain his action in writing furnishing the parties with copies of his resolution, not later than thirty (30) days from receipts of the records from the judge. If the accused is detained, the fiscal shall order his release. From the time that respondent Judge received the counter-affidavit of the accused on 24 March 1995 up to the time of his retirement, which was approved on 25 May 1997,7 respondent had not concluded his preliminary investigation. Clearly therefore he sat on the case for an unreasonable length of time. True that under Sec. 3, Rule 112, of the Rules of Court the investigating officer has the right to set a hearing for clarificatory questions. Thus we stated in Webb v. De Leon 8 — . . . The decision to call witnesses for clarificatory questions is addressed to the sound discretion of the investigator and the investigator alone. But we also said therein — If the evidence on hand already yields a probable cause, the investigator need not hold a clarificatory hearing. To repeat, probable cause merely implies probability of guilt and should de determined in a summary manner. Preliminary investigation is not a part of trial and it is only in a trial where an accused can demand the full exercise of his rights, such as the right to confront and cross-examine his accusers to establish his innocence. As it is clear that the clarificatory hearing was for the purpose only of re-examining the testimony of the complainant's witnesses, the presence of the accused was not needed to conduct the hearing. Respondent Judge should have continued with the hearing if indeed he was convinced that it was necessary, or he should have terminated the whole investigation. To conclude the preliminary investigation, it was enough that the accused was given an opportunity to rebut the evidence of the complainant by counter-affidavits. The fact that the accused escaped will not excuse the Judge from his duty to end the preliminary investigation as soon as possible. We reiterate our ruling in Rodis, Sr. v. Sandiganbayan (2nd Division)9 — . . . (the New Rules on Criminal Procedure) do not require as a condition sine qua non to the validity of the proceedings (in the preliminary investigation) the presence of the accused for as long as efforts to reach him were made, and an opportunity to controvert the evidence of the complainant is accorded him. The obvious purpose of the rule is to block attempts of unscrupulous respondent to thwart the prosecution of offense by hiding themselves or by employing dilatory tactics. Furthermore, par. (d), Sec. 3, of Rule 112 authorizes the Judge to resolve the case and base his resolution on the evidence on hand when the accused cannot be subpoenaed, or if subpoenaed does not submit counter-affidavits. We see no reason why respondent Judge could not have applied the rule when the accused disappeared after filing his counter-affidavit. However, it cannot be said that respondent violated Sec. 5 of Rule 112 since the preliminary investigation was never concluded precisely because he failed to render any resolution thereon. The delay proscribed by Sec. 5 will not commerce until after the preliminary investigation has been terminated. In A.M. No. MTJ-92-6-25, Judge Emerito M. Agcaoili v. Judge Jose O. Ramos, MTC, Echague, Isabela, this Court in its decision dated 7 February 1994, dismissed respondent Judge from the service with forfeiture of all retirement benefits, with prejudice to reemployment in any branch of the government, including government owned or controlled corporations, for gross ignorance of the law, dereliction of duty and serious misconduct for delay in conducting the preliminary investigation in four (4) criminal cases pending in his sala, and for falsifying the records of Crim. Case No. 24-0331 by erasing the original date of filing of the complaint, which was "5 December 1986," and changing it to "26 October 1987" in order to cover up his delay in resolving the case. This Court however, in its Resolution of 13 February 1995, reconsidered its decision dismissing respondent from the service but, in lieu thereof, imposed a fine of P10,000.00 on him (with warning that a similar act in the future would be dealt with more severely) on the ground that the finding of falsification by the investigating Judge turned out to be baseless. Since the instant administrative complaint was filed on 11 July 1995, or before respondent's retirement was approved on 25 May 1997, this Court retains authority to pursue the administrative complaint against him. Cessation from office of respondent because of retirement does not warrant the dismissal of the administrative complaint filed against him while he was still in the service. 10 However, the penalty of forfeiture of his retirement benefits, as recommended, appears to be too harsh. Consequently, a fine of P20,000.00 would seem just and proper under the circumstances, the amount to be deducted from the retirement benefits due respondent Judge. WHEREFORE, this Court finds respondent Judge Jose O. Ramos guilty of negligence for approving a fraudulent bail bond, and failure to terminate the preliminary investigation in connection with the killing of complainant's son Randy Ramos Tuliao within the period prescribed in Sec. 3, Rule 112, of the Rules of Court. Consequently, a fine of P20,000.00 is imposed on respondent Judge Jose O. Ramos, the amount to be deducted from whatever retirement benefits may be due him. SO ORDERED. Davide, Jr., Vitug and Kapunan, JJ., concur. Footnotes 1 Report and Recommendation of Judge Henedino P. Eduarte dated 18 December 1996, pp. 1-2. 2 Ibid. 3 Formal Offer of Evidence of Complainant dated 16 July 1996, p. 1. 4 Comment of respondent to the Formal Offer of Evidence filed by complainant; p. 1. 5 TSN, 24 October 1996, pp. 12-14. 6 At pp. 104-105. 7 TSN, 2 July 1996, p. 2. 8 G.R. Nos. 121245 & 121297, 23 August 1995, 247 SCRA 653 (1997) 9 G.R. Nos. 71404-09, 26 October 1988, 166 SCRA 618. 10 Perez v. Abiera, Adm. Case No. 223-J, 11 June 1975, 64 SCRA 302; Secretary of Justice v. Marcos, Adm. Case No. 207-J, 22 April 1997, 76 SCRA 301. The Lawphil Project - Arellano Law Foundation