NOTICE

Sirs/Mesdames:
Please take notice that the Court, Second Division, issued a Resolution dated 18
March 2015 which reads as follows:

G.R. No. 206328 — Gilbert G. Guy v. Asia United Bank.

This is a petition for review on certiorari seeking to reverse and set aside the
September 6, 2012 Decision[1] and the March 13, 2013 Resolution[2] of the Court of
Appeals (CA) in CA-G.R. CR No. 34190, which reversed and set aside the Order[3] of
the Regional Trial Court, Branch 67, Pasig City (RTC), dismissing Criminal Case
Nos. 131883 and 131884 filed against petitioner Gilbert Guy (Guy).

The Facts

Sometime in July and August 2004, respondent Asia United Bank (A UB) and 3D
Industries, Inc. (3D), represented by its President, Paulino Delfin Pe (Pe),
entered into a trust receipt agreement for the latter to secure a loan totalling
$216,391.26 or P12,148,816.90. The purpose of the loan was to facilitate the
purchase of raw materials for the manufacture of finished products such as electric
fans, washing machines and stoves, which were to be delivered to 3D's exclusive
distributor, Northern Island Co., Inc. (MCI).

Upon maturity of the trust receipts, 3D failed to account for, deliver or return,
the goods which remained unsold and to pay the loan amounting to at least
P11,287,264.56. A final demand was made on 3D and its Vice-President for
Operations, Guy, to remit the proceeds of the, sale of goods or to return the same
if unsold, but the same was unheeded.

This prompted AUB to file a complaint-affidavit[4] before the Office of the City
Prosecutor (OCP) of Pasig City, charging Guy for the crime of Estafa. under Article
315, paragraph 1 (b) of the Revised Penal Code (RPC), in relation to the Trust
Receipts Law or Presidential Decree (P.D.) No. 115.

In its complaint, AUB alleged that Guy, in order to induce the bank, guaranteed the
corporation's obligation under the Trust Receipt Agreement to the extent of
P30,000,000.00 by executing the "Continuing Guaranty." It further Claimed that
Guy's concurrent positions, as 3D's Vice President, member of the. Board of
Directors and controlling stockholder, undoubtedly made him responsible for the
corporation's obligation.

Guy controverted the charges against him in his Counter-Affidavit.[5] He emphasized

that he was never a signatory in the Trust Receipt Agreement. He explained that the
goods covered by the trust receipts were delivered to NICI, which, however, failed
to pay the proceeds on the items. Before 3D could withdraw the goods, the CA issued
a resolution, which ordered the surrender of the items of 3D to Simny Guy,
Geraldine Guy, Gladys Yao, and Emilia Tabugadir. In view of these, 3D was unable to
acquire possession of the goods as well as the proceeds of any sale thereof and to
return the goods and/or sales proceeds to AUB, despite its best efforts.

In its October 13, 2005 Joint Resolution,[6] the OCP found probable cause and filed
two (2) Informations against Guy for the crime of Estafa under Article 315, par. 1
(b) of the RPC in relation to P.D. No. 115, before the RTC, docketed as Criminal
Case Nos. 131883-84.

On November 9, 2005, Guy questioned the October 13, 2005 Joint Resolution of the
OCP through a petition for review[7] before the Department of Justice (DOJ). The
DOJ initially denied the said petition for review in its December 22, 2005
Resolution.[8]

In its April 20, 2006 Resolution,[9] however, the DOJ gave due course to the
belatedly filed motion for reconsideration and reversed its earlier resolution.[10]
In granting the motion, the DOJ found that the goods subject of the trust receipts
were indisputably in the possession and control of another entity and other persons
(NICI, Simny Guy, et al.), whose possession thereof was clearly against the will of
3D. The dispositive portion reads:

WHEREFORE, the Petition for Review filed by respondent-appellant Gilbert G. Guy is

hereby GRANTED, and the assailed Resolution dated October 13, 2005 of the Pasig
City Prosecutor's Office is hereby REVERSED and SET ASIDE, and both complaints
against respondent-appellant Gilbert G. Guy are hereby DISMISSED. Further, the City
Prosecutor of Pasig is hereby ordered to file the corresponding motion to withdraw
the Informations in the instant cases for the crime of Estafa under Article 315 (b)
of the Revised Penal Code in relation to P.D. 115, and report the action taken
thereon within five (5) days from receipt thereof.

SO ORDERED.[11]

Aggrieved, AUB questioned the said DOJ resolution via a petition for certiorari
[12] before the CA. In its September 25, 2006 Decision, [13] the CA ruled that the
DOJ acted without jurisdiction in issuing the April 20, 2006 Resolution, as it was
released long after the previous December 22, 2005 Resolution had already become
final and executory. It was clear that Guy failed to file a motion for
reconsideration within the 10-day reglementary period.

Meanwhile, the RTC issued a warrant of arrest, dated August 29, 2006, against Guy.
On February 26, 2007, Guy was arraigned and he pleaded "not guilty" to the offense
charged. Pre-trial and preliminary conferences were scheduled on June 4, 2007 and
May 3, 2007, respectively.

Guy then assailed the CA decision by filing a petition for review on certiorari[l4]
before this Court, docketed as G.R. No. 174874.

On October 4, 2007, the Court rendered a decision,[15] granting the petition and
reinstating the DOJ's April 20, 2006 resolution. The Court explained that the
Secretary of Justice possessed sufficient latitude of discretion in his
determination of what constituted probable cause. The act of accepting a motion for
reconsideration belatedly filed showed liberality, which was within the competence
of the DOJ Secretary to make. Absent compelling proof that the DOJ Secretary acted
out of whim, the Court loathed to disturb the same.

The Court added that the withdrawal of the Informations against Guy in Criminal
Case Nos. 131883 and 131884 was a matter addressed to the sole discretion of the
RTC, consistent with the ruling in Crespo v. Mogul. [16] The decretal portion of
the Court's decision reads:

WHEREFORE, the petition is GRANTED. Accordingly, the Decision of the Court of

Appeals dated September 25, 2006 in CA¬G.R. SP No. 94361 is NULLIFIED and SET ASIDE
and the Resolution of the Secretary of Justice dated April 20, 2006 is REINSTATED.

No pronouncement as to costs.

SO ORDERED.[I7]

AUB filed a motion for reconsideration, but it was denied in the Court's July 28,
2008 Resolution[18] which attained finality on September 24, 2008.
On August 20, 2010, AUB filed its Compliance with Motion to Revive Proceedings[19]
in Criminal Case Nos. 131883-84 before the RTC. Guy, on the other hand, filed his
Motion to Withdraw Information[20] on September 29, 2010, based on the October 4,
2007 Decision of the Supreme Court.

Ruling of the RTC

In its Order,[21] dated November 8, 2010, the RTC denied the motion to revive
proceedings filed by AUB and granted the motion to withdraw Informations filed by
Guy. Considering that the October 4, 2007 decision of the Court already attained
finality, the RTC granted the relief sought by Guy. The dispositive portion of the
said Order states:

WHEREFORE, in view of all the foregoing and pursuant to the Decision rendered by
the Honorable Supreme Court, Criminal Cases No. 131883 and 131884 are hereby
DISMISSED.

Accordingly, the Informations filed against accused Gilbert Guy are ordered
WITHDRAWN.

SO ORDERED.[22]

AUB filed a motion for reconsideration, but the same was denied in the RTC's
February 18, 2011 Order.[23]

On March 28, 2011, AUB filed its notice of appeal. It had the conformity of the
OCP, but not the authority of the Office of the Solicitor General (OSG).

Ruling of the CA

On September 6, 2012, the CA granted AUB's appeal in its assailed decision. The CA
ruled that the RTC failed to make an independent assessment and evaluation of the
merits of the case in dismissing the criminal case because it relied solely on the
recommendation of the DOJ. In other words, the trial court became a mere surrogate
of the DOJ. The RTC should have made its own pronouncement on the existence or non-
existence of probable cause based on the affidavits and counter-affidavits,
documents, or evidence appended to the Informations.

The CA also stated that AUB had the personality to file the appeal and cited the
general rule that only the OSG may represent the People or the State in criminal
proceedings before this Court and the CA. The CA, however, cited two exceptions:
(1) when there was denial of due process of law; and (2) when the private offended
party questioned the civil aspect of a decision of a lower court. The CA was of the
view that AUB was denied due process when the RTC withdrew the Informations by
basing it solely on the DOJ resolution. The dispositive portion reads:

WHEREFORE, the appeal is GRANTED. The assailed November 8, 2010 and February 18,
2011 Orders of the Regional Trial Court of Pasig City, Branch 67, in Criminal Cases
Nos. 131883-84 are hereby REVERSED and SET ASIDE. Instead, the case is REMANDED to
the Regional Trial Court of Pasig City, Branch 67, for trial on the merits. No
costs.

SO ORDERED.[24]

On September 26, 2012, Guy filed his motion for reconsideration[25] before the CA,
while the OSG filed its Manifestation[26] on January 23, 2013. The OSG stated,
among others, that it did not consent to the appeal of AUB and that the RTC order
granting the withdrawal of the Informations was valid because it relied on the
October 4, 2007 decision of the Court.
Despite the Manifestation of the OSG, in its March 13, 2013 resolution, the CA
denied the motion for reconsideration filed by Guy. Hence, this petition.

STATEMENT OF ISSUES

THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN TAKING COGNIZANCE OF AND
GRANTING PRIVATE COMPLAINANT AUB'S APPEAL OF THE DISMISSAL OF CRIMINAL CASE NOS.
131883-84 WHEN ONLY THE OFFICE OF THE SOLICITOR GENERAL MAY FILE SUCH APPEAL IN
BEHALF OF THE STATE.

II

THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN REVERSING THE TRIAL
COURT'S ORDER WITHDRAWING THE INFORMATIONS AGAINST PETITIONER GUY ON THE GROUND
THAT SUCH ORDER VIOLATED RESPONDENT AUB'S RIGHT TO DUE PROCESS OF LAW WHEN SUCH
DISMISSAL OF THE CHARGE IS PURSUANT TO THE HONORABLE COURT'S DECISION DATED OCTOBER
4, 2007 IN G.R. NO. 174874.[27]

Guy contends that AUB is not authorized to prosecute the case on appeal because it
failed to secure the conformity or authorization of the OSG; that the CA erred in
applying the exception because AUB did not even allege in its Appellant's Brief
that it was deprived of due process; that the proper remedy to contest the lack of
due process would be a petition for certiorari, and not an appeal; that assuming
arguendo that the appeal was properly taken, the same must still be denied; and
that the RTC order was made, not in deference to the Secretary of Justice, but to
the Court decision.

In its Comment,[28] dated July 3, 2013, AUB averred that Guy failed to provide any
applicable jurisprudence contradictory to the ruling of the CA; that appeal was the
proper remedy because there was no double jeopardy and it was deprived of its right
to due process; and that the RTC erred in solely relying on the October 4, 2007
decision of the Court because it only dealt with the jurisdiction of the DOJ.

On November 15, 2013, Guy filed his Reply,[29] reiterating that AUB did not have a
personality to appeal, as the RTC was not required to perform an independent
determination of the existence of probable cause because the Court had already made
such determination in its October 4, 2007 decision.

On November 25, 2014, AUB filed its Mernorandum,[30] where it asserted that the
October 4, 2007 decision of the Court expressly directed the trial court to conduct
its own independent evaluation of the evidence and that, in any event, the trial
court's duty to independently assess and evaluate the evidence to determine the
existence of probable cause must be properly threshed out during the trial on the
merits.

On February 4, 2015, Guy filed his Memorandum,[31] insisting that the CA should
have summarily dismissed the appeal because it did not have the conformity of the
OSG. Guy further stated that the RTC order to withdraw the Informations only showed
the trial court's adherence to the Court's decision because in the hierarchy of
courts, lower courts owed obedience to the decisions of the High Court.

The Court's Ruling The petition lacks merit.

The OSG, as legal counsel of the government, has the exclusive right to appeal a
criminal case; Exceptions
In a criminal case in which the offended party is the State, the interest of the
private complainant or the private offended party is limited to the civil liability
arising therefrom. If a criminal case is dismissed by the trial court or if there
is an acquittal, an appeal of the criminal aspect may be undertaken, whenever
legally feasible, only by the State through the Solicitor General. As a rule, only
the Solicitor General may represent the People of the Philippines on appeal. The
private offended party or complainant may not undertake such appea1.[32]

In the case at bench, AUB filed its notice of appeal with the conformity of the
OCP, but without the permission of the OSG. In. its manifestation before the CA,
the OSG elaborated on its opposition against the appeal filed by AUB. It stated
that the DOJ was its client and it was its duty to uphold and defend the position
of the DOJ. The OSG admitted that there were indeed occasions wherein it took a
position adverse to the People or the prosecution, but it respectfully submitted
that such exception was not obtaining in the case.

In the assailed decision, the CA was of the view that AUB had the personality to
file the appeal because there was denial of due process of law, which was one of
the two exceptions laid down by jurisprudence as to when a private complainant or
offended party in a criminal case may directly file a petition with this Court. In
Heirs of Delgado v. Gonzales,[33] the Court cited two exceptions: (1) when there is
denial of due process of law to the prosecution and the State or its agents refuse
to act on the case to the prejudice of the State and the private offended party;
and (2) when the private offended party questions the civil aspect of a decision of
a lower court.

There are several cases which applied the first exception. In Merciales v. CA,[34]
the Court granted the petition because the trial court denied the offended party
its right to due process. In the said case, the public prosecutor who handled the
case deliberately failed to present an available witness which led the trial court
to declare that the prosecution had rested its case. The offended party was
deprived of her day in court so she was allowed to question the order of dismissal
without the conformity of the OSG.

Similarly, in Perez v. Hagonoy Rural Bank,[35] the Court allowed the offended party
to appeal the trial court's order of dismissal. After the Information was filed in
court, the public prosecutor filed a motion to dismiss the case against one of the
accused because there was lack of probable cause. The trial court granted the
dismissal of the criminal case without an independent evaluation or assessment of
the merits of the case. The offended party filed a petition for certiorari and
mandamus without the conformity of the OSG. The Court ruled therein that a private
complainant had legal personality to assail the dismissal of the criminal case
against the accused on the ground that the order of dismissal was issued with grave
abuse of discretion amounting to lack or excess of jurisdiction.

[1] Penned by Associate Justice Noel G. Tijam, with Associate Justice Manuel M.
Barrios and Associate Justice Victoria Isabel A. Paredes, concurring; rollo (Volume
1), pp. 33-49.

[2] Id. at 51-54.

[3] Penned by Presiding Judge Amorfina Cerrado-Cezar; id. at 552-555.

[4] Id. at 97-109.

[5] Id. at 110-124.

[6] Id. at 86-93.
[7] Id. at 60-85.
[8] Id. at 291-292.
[9] Id. at 303-311. [10] Id. at 293-302.
[11] Id. at 311.
[12] Id. at 312-368.
[13] Id. at 369-381.
[14] Id. at 382-431.
[15] Id. at 433-448.
[16] 235 Phil. 465 (1987).
[17] Rollo (Volume 1), p. 447.
[18] Id. at 495.
[19] Id. at 496-500.
[20] Id. at 521-525.
[21] Id. at 552-555.
[22] Id. at 555.
[23] Rollo (Volume II), pp. 627-628.
[24] Rollo (Volume I), pp. 48-49.
[25] Rollo (Volume II), pp. 772-790.
[26] Id. at 957-961.
[27] Rollo (Volume I), p. 13.
[28] Rollo (Volume II), pp. 972-1040.
[29] Rollo (Volume III), pp. 1379-1398.
[30] Id. at 1420-1484.
[31] Id. at 1509-1548.
[32] Bautista v. Cuneta-Pangilinan, G.R. No. 189754, October 24, 2012, 684 SCRA
521, 537.
[33] Heirs of Delgado v. Gonzales, 612 Phil. 817, 844 (2009).
[34] 429 Phil. 70 (2002).
[35] 384 Phil. 322 (2000).