G.R. No. 152789




FIRST DIVISION G.R. No. 152789 October 21, 2004 ATTY. ISAGANI B. RIZON, petitioner, vs. HON. ANIANO A. DESIERTO, in his Capacity as The Ombudsman, respondent. D E C I S I O N QUISUMBING, J.: This special civil action for certiorari and prohibition imputes to respondent Ombudsman Aniano A. Desierto grave abuse of discretion amounting to lack or excess of jurisdiction when he disapproved the Recommendation¹ of the Ombudsman Prosecutor that the Information be withdrawn in Criminal Case No. 26266, charging herein petitioner Mayor Isagani B. Rizon of Baroy, Lanao del Norte, with violation of Republic Act No. 3019.² The antecedent facts are as follows: On June 21, 1999, Eugenio L. Dayo, a Sangguniang Bayan member of the Municipality of Baroy, Lanao del Norte, lodged a Complaint³ against petitioner for malversation through falsification of public documents and violation of Rep. Act No. 3019. The Complaint alleged irregularities committed by the petitioner involving the repair of the municipality’s cultural center, the purchase of a second-hand Mitsubishi Grader, and the purchase of 552 sacks of rice amounting to ₱458,160. After preliminary investigation, Graft Investigation Officer II Agnes Altea-Monfort of the Office of the Deputy Ombudsman for Mindanao found probable cause to charge petitioner of having violated Section 3(e)⁴ of Rep. Act No. 3019 for the purchase of 552 sacks of rice. Parenthetically, no irregularity was found with respect to the purchase of the Mitsubishi Grader nor the repair of the cultural center. The pertinent portion of the Graft Investigator’s Resolution reads: This Office finds that respondent is liable for violation of Section 3(e) of RA 3019 for purchasing 552 sacks of rice even prior to the enactment of a Resolution by the SB authorizing said purchase and for having negotiated with Belma[’s] Store for the issuance of blank receipts to make it appear that the municipality received 552 bags of rice when it was only about 50 to 60 bags of rice that were actually delivered by Belma[’s] Store. . . . From the evidence submitted by the complainant, it was established that respondent, even prior to the enactment of the SB Resolution No. 98-24, Series of 1998 dated 27 April 1998 (Record[s], p. 5) had already caused the purchase of 552 sacks of rice from Belma’s Store in the aggregate amount of ₱458,160.00 on several dates as can be gleaned from the Sales Invoice Nos. 9359 dated 16 April 1998, 9360 dated 17 April 1998 and 9361 dated 20 April 1998. . . . . . . We cannot close our eyes to the fact that the owner of Belma’s Store, Mr. Isabelo Seno admitted, during the conduct of an investigation on the alleged irregularity in the purchase of 552 sacks of rice, the following relevant and significant statements that convinced us that indeed there was an anomaly in the transaction (Record[s], pp. 25-26): 1. that the store issued blank receipts to respondent; 2. that the total number of sacks of rice purchased from his store is actually about 50 to 60 sacks only; 3. that some of the sales invoice were not signed by him; and 4. that it was respondent who negotiated with him on this particular transaction. Although, respondent submitted an Affidavit (Record[s], p. 40) executed by Isabelo Seno recanting his statements before the SB Fact-Finding Committee, this cannot overcome the presumption of liability. It is a prevailing doctrine in our jurisprudence that testimonial evidence carries more weight than an affidavit and the court loathe to put any reliance on an affidavit of retraction. Moreover, it is noteworthy that the Municipal Accountant, Mrs. Durante, also testified before the fact-finding committee that the documents pertaining to the 552 sacks of rice were processed after the election and she did not sign the documents because these were incomplete, without the list of recipients, and sacks of rice were not even delivered to the municipal office (Record[s], p. 26).⁵ The Resolution was reviewed by Director Corazon A. Arancon of the Office of the Deputy Ombudsman for Mindanao. It was recommended for approval by Deputy Ombudsman for Mindanao, Antonio E. Valenzuela, and duly approved by respondent Ombudsman Aniano A. Desierto. Accordingly, on September 18, 2000, an Information for violation of the Anti-Graft and Corrupt Practices Act was filed with the Sandiganbayan, docketed as Criminal Case No. 26266. The accusatory portion of the charge sheet reads: That on or about 13, 14, 16 and 17 April 1998 or thereabout, in the Municipality of Baroy, Lanao del Norte, Philippines, and within the jurisdiction of this Honorable Court, accused Isagani B. Rizon, a high-ranking public officer, being then the Municipal Mayor of Baroy, Lanao del Norte, committing the offense in relation to his office, acting with evident bad faith, did then and there willfully, unlawfully and feloniously, make it appear that he purchased Five Hundred Fifty-Two (552) sacks of rice from Belma’s Store without the required SB Resolution authorizing its purchase, then negotiated with the said store for the issuance of blank receipts in order to make it appear that 552 sacks of rice were delivered to the Municipality of Baroy in the total amount of Four Hundred Fifty-Eight Thousand, One Hundred Sixty Pesos (₱458,160.00) when in truth and in fact, as the accused very well knew only about Fifty (50) to Sixty (60) sacks of rice were purchased and delivered to the municipality, thereby causing undue injury to the community and to the government. CONTRARY TO LAW.⁶ On October 18, 2000, petitioner filed a Motion for Reinvestigation, which the Sandiganbayan granted. Petitioner presented new evidence consisting of copies of a certified weather information on the El Niño occurrence over Lanao del Norte during the period 1997-1998; a copy of the Special Rainfall Assessment for Mindanao during the 1997-1998 El Niño episode; a map showing rainfall extreme index in areas with severe drought impact; a copy of the overview record of rainfall deficit all over the country; and a copy of the municipal board resolution implementing the annual budget for calendar year 1998.⁷ Petitioner also submitted a copy of the audit report conducted by a team of government auditors. The audit report contained a motion for the dismissal of the criminal charge against petitioner for lack of factual basis, but recommended that petitioner, along with the municipal treasurer and engineer, be held jointly and solidarily liable for refund of the disallowed sum of ₱641,210.11.⁸ The petitioner likewise presented again the affidavit⁹ of Isabelo Seno, proprietor of Belma’s Store. The affiant originally testified before the fact-finding committee that about 50 to 60 sacks of rice were purchased by petitioner, although he stressed that he was unsure of the actual quantity since there were other people who tended the store. Later, he recanted this testimony in his affidavit confirming, instead, that indeed 552 sacks of rice were purchased at ₱830/sack for a total of ₱458,160. After reinvestigation, Ombudsman Prosecutor Florita S. Linco, in a Memorandum¹⁰ dated March 12, 2001, recommended the withdrawal of the Information and the dismissal of the criminal case against the petitioner. However, respondent Ombudsman disapproved Prosecutor Linco’s recommendation, thus: The recommendation to withdraw information is purely based on appreciation of evidence which should be subjected to the scrutiny of the court in a full-blown trial. There is no compelling reason to reverse the conclusion of the preliminary investigation officer who evaluated the evidence. The supervising director’s review and that of the Deputy Ombudsman which confirm the investigator’s findings have reinforced the latter’s finding of probable cause.¹¹ Unconvinced, petitioner filed with the Office of the Ombudsman a Motion for Reconsideration of the disapproval of Prosecutor Linco’s recommendation to dismiss the case against him and withdraw the Information filed with the Sandiganbayan. While said motion was pending, respondent Ombudsman filed a Comment to the Motion for Reconsideration alleging that the motion should have been addressed to the Sandiganbayan where the case was then pending and that the same was in the nature of a Second Motion for Reconsideration, which is a prohibited pleading. Believing that his pending motion for reconsideration would no longer be resolved, petitioner filed the instant petition averring that Ombudsman Desierto acted with grave abuse of discretion: I . . . IN TOTALLY DISREGARDING THE CONTROVERTING FACTS WHICH NEGATED THE FINDING OF PROBABLE CAUSE II . . . IN SUBJECTING THE PETITIONER TO TRIAL DESPITE THE RECOMMENDATION TO DISMISS THE CASE ON THE GROUND OF WANT OF PRIMA FACIE EVIDENCE III . . . IN PASSING TO THE SANDIGANBAYAN THE APPRECIATION OF EVIDENCE WHICH COULD HAVE BEEN EVALUATED AT THE FIRST INSTANCE BY HIS OFFICE¹² Simply put, the sole issue is whether respondent Ombudsman committed grave abuse of discretion in disapproving the recommendation of his subordinate to dismiss the case against petitioner for alleged lack of prima facie evidence. Petitioner argues that although it is respondent Ombudsman’s duty to prosecute, the latter must not subject anybody to unfounded prosecution when, during the preliminary investigation, he can already make the determination that there is no prima facie case based on the evidence so far adduced. Petitioner contends that respondent was derelict in his duty to ensure that the cases filed in court are those cases which, using the considerable resources of his office, have been determined to be meritorious. Petitioner insists that being a municipal mayor of a small town, the mere existence of an accusation exposes him to political harassment and ridicule. He further avers that once arraigned, he would be exposed to the risk of being suspended from public office to the detriment of his constituents. Finally, the petitioner claims that respondent was being used as an unwitting instrument of his political opponents who, he insinuates, initiated the allegedly politically motivated case against him. Respondent Ombudsman maintains, however, that before he declared that "[t]here is no compelling reason to reverse the conclusion of the preliminary investigation officer who evaluated the evidence," he had taken into consideration the new evidence submitted by the petitioner during the reinvestigation, as well as the other evidence on record. Citing Deloso v. Hon. Desierto,¹³ respondent stresses he did not commit a grave abuse of discretion simply because he opined that, under the facts obtaining in the case, there is probable cause that the petitioner was guilty of the offense charged. After careful perusal of the parties’ arguments and assiduous examination of the records, we find nothing in respondent’s questioned ruling that hints of grave abuse of discretion correctible by a writ of certiorari and prohibition. The petition is thus bereft of merit. Time and again, we have held that a prosecutor does not decide whether there is evidence beyond reasonable doubt of the guilt of the person charged. He merely determines whether there is sufficient ground to engender a well-founded belief that a crime has been committed and that the accused is probably guilty thereof, and should be held for trial.¹⁴ A finding of probable cause, therefore, does not require an inquiry as to whether there is sufficient evidence to secure a conviction. It is enough that the prosecutor believes that the act or omission complained of constitutes the offense charged. A trial is intended precisely for the reception of prosecution evidence in support of the charge.¹⁵ It is the court that is tasked to determine guilt beyond reasonable doubt based on the evidence presented by the parties at a trial on the merits. Applying the foregoing principle to the instant case, we agree with respondent Ombudsman that the recommendation to dismiss the case against the petitioner was based on appreciation of evidence, which should be subjected to the scrutiny of the court in a full-blown trial on the merits. Similarly, we find supported by evidence on record respondent Ombudsman’s conclusion that the reinvestigation yielded no compelling reason to reverse the finding of probable cause by the graft investigation officer. Prosecutor Linco’s three-page memorandum cites neither palpable basis nor any evidence sufficient to refute the finding of probable cause by Graft Investigation Officer Altea-Monfort. The recommendation to dismiss the charge against petitioner hinges primarily on the claim that the same is politically motivated, to wit: Having pointed to his nephew or niece as having also sold rice, the committee should have called this person as witness, if it really wanted to go to the bottom of the alleged irregularity. The fact that it did not, lends credence to accused-movants’ allegation of political vengeance and its intention to use it as a leverage in the event the (accused-movant) files an election protest. As it happened, Rizon, aware that the election was a close one filed an election protest with the COMELEC immediately thereafter. . . . Thus the filing of herein charge, like those of the other charges against accused-movant was motivated by no other desire than to use the same as a leverage. WHEREFORE, in view of the foregoing, accused-movant having successfully refuted complainants’ allegations with credible and competent evidence, it is respectfully recommended that instant case be dismissed and that the corresponding Motions to Withdraw Information appended to this Resolution be approved for filing in court.¹⁶ Let it be said that mere speculation that the charge against petitioner was politically motivated is not enough to overthrow a finding of probable cause based on credible evidence. It may be true that the criminal case against the petitioner was launched by the petitioner’s political opponents as a tactical move. But certainly that fact alone, even if proven, cannot overcome a sufficient finding of probable cause that the petitioner may be guilty of the crime charged. In a desperate move, the petitioner laments that being the municipal mayor of a small town, the mere existence of the criminal charge exposes him to political harassment and ridicule. This is understandable, but of no persuasive value in weighing the merit of this case. If indeed he is innocent, he will be acquitted and the charge against him will be put to rest by the proper court. Indeed, as a mayor, petitioner should always be circumspect in his official actions, and above reproach in the discharge of his official duties, sharply aware that his political opponents as well as his constituents watch his every move in public office. As a final note, we have consistently held in a number of cases that this Court will refrain from interfering with the exercise by the Ombudsman of his constitutionally mandated investigatory and prosecutory powers. It is not for this Court to review the Ombudsman’s exercise of discretion in prosecuting or dismissing a complaint filed before his Office. Such initiative and independence are inherent in the Ombudsman who, beholden to no one, acts as the champion of the people, and is the guardian of the integrity of the public service.¹⁷ In this regard, the Ombudsman is only performing his sworn duty. WHEREFORE, there being no showing that the impugned ruling of respondent Ombudsman is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction, the instant petition is DISMISSED for lack of merit. No pronouncement as to costs. SO ORDERED. Davide, Jr., Ynares-Santiago, Carpio, and Azcuna, JJ.,* concur. Footnotes * On Leave. ¹ Rollo, pp. 80-83. ² Otherwise known as the Anti-Graft and Corrupt Practices Act. ³ Records, pp. 17-20. ⁴ SEC. 3. Corrupt practices of public officers. – In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: . . . (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. ⁵ Records, pp. 8-10. ⁶ Id. at 1. ⁷ Id. at 144. ⁸ Id. at 66. ⁹ Id. at 67. ¹⁰ Id. at 143-146. ¹¹ Id. at 146. ¹² Rollo, p. 8. ¹³ G.R. No. 129939, 9 September 1999, 372 Phil. 805, 815. ¹⁴ People v. CA, G.R. No. 126005, 21 January 1999, 361 Phil. 401, 415. ¹⁵ Pilapil v. Sandiganbayan, G.R. No. 101978, 7 April 1993, 221 SCRA 349, 360. ¹⁶ Records, p. 145. ¹⁷ Blanco v. Sandiganbayan, G.R. Nos. 136757-58, 27 November 2000, 346 SCRA 108, 116. The Lawphil Project - Arellano Law Foundation