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For review is the Decision[1] of the Court of Appeals (CA) dated June 20, 2000 in

CA-G.R. SP No. 49666 dismissing the petition for certiorari filed by petitioners
Teodoro C. Borlongan, Jr., Corazon M. Bejasa, Arturo Manuel, Jr., Benjamin de
Leon, P. Siervo Dizon, Delfin C. Gonzalez, Jr., Eric Lee and Ben T. Lim, Jr.

The factual and procedural antecedents of the case are as follows:

Respondent Magdaleno Pea instituted a civil case for recovery of agents

compensation and expenses, damages, and attorneys fees,[2] against Urban Bank and
the petitioners, before the Regional Trial Court (RTC) of Negros
Occidental, Bago City. The case was raffled to Branch 62 and was docketed as Civil
Case No. 754.Respondent anchored his claim for compensation on the contract of
agency[3] allegedly entered into with the petitioners wherein the former undertook to
perform such acts necessary to prevent any intruder and squatter from unlawfully
occupying Urban Banks property located along Roxas
Boulevard, Pasay City. Petitioners filed a Motion to Dismiss arguing that they
never appointed the respondent as agent or counsel. Attached to the motion were the
following documents: 1) a letter[5] dated December 19, 1994 signed by Herman
Ponce and Julie Abad on behalf of Isabela Sugar Company, Inc. (ISCI), the original
owner of the subject property; 2) an unsigned letter[6] dated December 7, 1994
addressed to Corazon Bejasa from Marilyn G. Ong; 3) a letter[7] dated December 9,
1994 addressed to Teodoro Borlongan and signed by Marilyn G. Ong; and 4) a
Memorandum[8] dated November 20, 1994 from Enrique Montilla III. Said
documents were presented in an attempt to show that the respondent was appointed
as agent by ISCI and not by Urban Bank or by the petitioners.

In view of the introduction of the above-mentioned documents, respondent Pea filed

his Complaint-Affidavit[9] with the Office of the City Prosecutor, Bago City.[10] He
claimed that said documents were falsified because the alleged signatories did not
actually affix their signatures, and the signatories were neither stockholders nor
officers and employees of ISCI.[11] Worse, petitioners introduced said documents as
evidence before the RTC knowing that they were falsified.

In a Resolution[12] dated September 23, 1998, the City Prosecutor concluded that the
petitioners were probably guilty of four (4) counts of the crime of Introducing
Falsified Documents penalized by the second paragraph of Article 172 of the
Revised Penal Code (RPC). The City Prosecutor concluded that the documents were
falsified because the alleged signatories untruthfully stated that ISCI was the
principal of the respondent; that petitioners knew that the documents were falsified
considering that the signatories were mere dummies; and that the documents formed
part of the record of Civil Case No. 754 where they were used by petitioners as
evidence in support of their motion to dismiss, adopted in their answer and later, in
their Pre-Trial Brief.[13] Subsequently, the corresponding Informations[14] were filed
with the Municipal Trial Court in Cities (MTCC), Bago City. The cases were
docketed as Criminal Cases Nos. 6683, 6684, 6685, and 6686. Thereafter, Judge
Primitivo Blanca issued the warrants[15] for the arrest of the petitioners.

On October 1, 1998, petitioners filed an Omnibus Motion to Quash, Recall Warrants

of Arrest and/or For Reinvestigation.[16] Petitioners insisted that they were denied
due process because of the non-observance of the proper procedure on preliminary
investigation prescribed in the Rules of Court. Specifically, they claimed that they
were not afforded the right to submit their counter-affidavit. They then argued that
since no such counter-affidavit and supporting documents were submitted by the
petitioners, the trial judge merely relied on the complaint-affidavit and attachments
of the respondent in issuing the warrants of arrest, also in contravention of
the Rules. Petitioners further prayed that the information be quashed for lack of
probable cause. Lastly, petitioners posited that the criminal case should have been
suspended on the ground that the issue being threshed out in the civil case is a
prejudicial question.

In an Order[17] dated November 13, 1998, the court denied the omnibus motion
primarily on the ground that preliminary investigation was not available in the
instant case --- which fell within the jurisdiction of the MTCC. The court, likewise,
upheld the validity of the warrant of arrest, saying that it was issued in accordance
with the Rules. Besides, the court added, petitioners could no longer question the
validity of the warrant since they already posted bail. The court also believed that
the issue involved in the civil case was not a prejudicial question, and thus, denied
the prayer for suspension of the criminal proceedings. Lastly, the court was
convinced that the Informations contained all the facts necessary to constitute an
Petitioners subsequently instituted a special civil action for Certiorari and
Prohibition with Prayer for Writ of Preliminary Injunction and TRO, before the CA
ascribing grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of the MTCC in issuing and not recalling the warrants of arrest, reiterating
the arguments in their omnibus motion.[18] They, likewise, questioned the courts
conclusion that by posting bail, petitioners already waived their right to assail the
validity of the warrant of arrest.

On June 20, 2000, the CA dismissed the petition.[19] Hence, the instant petition for
review on certiorari under Rule 45 of the Rules of Court. Petitioners now raise
before us the following issues:


Where the offense charged in a criminal complaint is not cognizable by

the Regional Trial Court and not covered by the Rule on Summary
Procedure, is the finding of probable cause required for the filing of an
Information in court?

If the allegations in the complaint-affidavit do not establish probable

cause, should not the investigating prosecutor dismiss the complaint, or at
the very least, require the respondent to submit his counter-affidavit?


Can a complaint-affidavit containing matters which are not within the

personal knowledge of the complainant be sufficient basis for the finding
of probable cause?


Where the offense charged in a criminal complaint is not cognizable by

the Regional Trial Court and not covered by the Rule on Summary
Procedure, and the record of the preliminary investigation does not show
the existence of probable cause, should not the judge refuse to issue a
warrant of arrest and dismiss the criminal case, or at the very least, require
the accused to submit his counter-affidavit in order to aid the judge in
determining the existence of probable cause?

Can a criminal prosecution be restrained?


Can this Honorable Court itself determine the existence of probable


On August 2, 2000, this Court issued a Temporary Restraining Order

(TRO)[21] enjoining the judge of the MTCC from proceeding in any manner with
Criminal Cases Nos. 6683 to 6686, effective during the entire period that the case is
pending before, or until further orders of, this Court.

With the MTCC proceedings suspended, we now proceed to resolve the issues

Respondents contend that the foregoing issues had become moot and academic when
the petitioners posted bail and were arraigned.

We do not agree.

It appears that upon the issuance of the warrant of arrest, petitioners

immediately posted bail as they wanted to avoid embarrassment being then the
officers of Urban Bank. On the scheduled date for the arraignment, despite the
petitioners refusal to enter a plea, the court entered a plea of Not Guilty.

The earlier ruling of this Court that posting of bail constitutes a waiver of the
right to question the validity of the arrest has already been superseded by Section
26,[22] Rule 114 of the Revised Rules of Criminal Procedure. Furthermore, the
principle that the accused is precluded from questioning the legality of his arrest
after arraignment is true only if he voluntarily enters his plea and participates during
trial, without previously invoking his objections thereto.[23]
Records reveal that petitioners filed the omnibus motion to quash the information
and warrant of arrest, and for reinvestigation, on the same day that they posted
bail. Their bail bonds likewise expressly contained a stipulation that they were not
waiving their right to question the validity of their arrest.[24] On the date of the
arraignment, the petitioners refused to enter their plea, obviously because the issue
of the legality of the information and their arrest was yet to be settled by the
Court. This notwithstanding, the court entered a plea of Not Guilty. From these
circumstances, we cannot reasonably infer a valid waiver on the part of the
petitioners, as to preclude them from raising the issue of the validity of the arrest
before the CA and eventually before this Court.

In their petition filed before this Court, petitioners prayed for a TRO to restrain the
MTCC from proceeding with the criminal cases (which the Court eventually issued
on August 2, 2000). Thus, we confront the question of whether a criminal
prosecution can be restrained, to which we answer in the affirmative.

As a general rule, the Court will not issue writs of prohibition or injunction,
preliminary or final, to enjoin or restrain criminal prosecution. However, the
following exceptions to the rule have been recognized: 1) when the injunction is
necessary to afford adequate protection to the constitutional rights of the accused; 2)
when it is necessary for the orderly administration of justice or to avoid oppression
or multiplicity of actions; 3) when there is a prejudicial question which is sub judice;
4) when the acts of the officer are without or in excess of authority; 5) where the
prosecution is under an invalid law, ordinance or regulation; 6) when double
jeopardy is clearly apparent; 7) where the Court has no jurisdiction over the offense;
8) where it is a case of persecution rather than prosecution; 9) where the charges are
manifestly false and motivated by the lust for vengeance; and 10) when there is
clearly no prima facie case against the accused and a motion to quash on that ground
has been denied.[25]

Considering that the issues for resolution involve the validity of the information and
warrant of arrest, and considering further that no waiver of rights may be attributed
to the petitioners as earlier discussed, we issued a TRO on August 2, 2000 to give
the Court the opportunity to resolve the case before the criminal prosecution is
allowed to continue. The nature of the crime and the penalty involved (which is less
than 4 years of imprisonment), likewise, necessitate the suspension of the case below
in order to prevent the controversy from being mooted.

We now proceed with the main issues, viz.: 1) whether petitioners were deprived of
their right to due process of law because of the denial of their right to preliminary
investigation and to submit their counter-affidavit; 2) whether the Informations
charging the petitioners were validly filed and the warrants for their arrest were
properly issued; and 3) whether this Court can, itself, determine probable cause.

As will be discussed below, the petitioners could not validly claim the right to
preliminary investigation. Still, petitioners insist that they were denied due process
because they were not afforded the right to submit counter-affidavits which would
have aided the court in determining the existence of probable cause.[26]Petitioners
also claim that the respondents complaint-affidavit was not based on the latters
personal knowledge; hence, it should not have been used by the court as basis in its
finding of probable cause.[27] Moreover, petitioners aver that there was no sufficient
evidence to prove the elements of the crime. Specifically, it was not established that
the documents in question were falsified; that petitioners were the ones who
presented the documents as evidence; and that petitioners knew that the documents
were indeed falsified.[28] Petitioners likewise assert that at the time of the filing of
the complaint-affidavit, they had not yet formally offered the documents as
evidence; hence, they could not have introduced the same in court.[29] Considering
the foregoing, petitioners pray that this Court, itself, determine whether or not
probable cause exists.[30]

The pertinent provisions of the 1985 Rules of Criminal Procedure,[31] namely,

Sections 1, 3 (a) and 9(a) of Rule 112, are relevant to the resolution of the aforesaid

SECTION 1. Definition. Preliminary investigation is an inquiry or

proceeding for the purpose of determining whether there is sufficient
ground to engender a well-founded belief that a crime cognizable by the
Regional Trial Court has been committed and that the respondent is
probably guilty thereof, and should be held for trial.[32]
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
of 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 personally examined the
affiants and that he is satisfied that they voluntarily executed
and understood their affidavits.[33]

SEC. 9. Cases not falling under the original jurisdiction of the Regional
Trial Courts not covered by the Rule on Summary Procedure.

(a) Where filed with the fiscal. If the complaint is filed directly with the
fiscal or state prosecutor, the procedure outlined in Section 3 (a) of this
Rule shall be observed. The Fiscal shall take appropriate action based on
the affidavits and other supporting documents submitted by the

Petitioners were charged with the offense defined and penalized by the second
paragraph of Article 172[35] of the Revised Penal Code. The penalty imposable
is arresto mayor in its maximum period to prision correccional in its minimum
period, or four (4) months and one (1) day to two (2) years and four (4)
months.Clearly, the case is cognizable by the Municipal Trial Court and preliminary
investigation is not mandatory.[36]

Records show that the prosecutor relied merely on the complaint-affidavit of

the respondent and did not require the petitioners to submit their counter-
affidavits. The prosecutor should not be faulted for taking this course of action,
because it is sanctioned by the Rules. To reiterate, upon the filing of the complaint
and affidavit with respect to cases cognizable by the MTCC, the prosecutor shall
take the appropriate action based on the affidavits and other supporting documents
submitted by the complainant. It means that the prosecutor may either dismiss the
complaint if he does not see sufficient reason to proceed with the case, or file the
information if he finds probable cause. The prosecutor is not mandated to require the
submission of counter-affidavits. Probable cause may then be determined on the
basis alone of the affidavits and supporting documents of the complainant, without
infringing on the constitutional rights of the petitioners.
On the other hand, for the issuance of a warrant of arrest, the judge must
personally determine the existence of probable cause. Again, the petitioners insist
that the trial judge erred in issuing the warrant of arrest without affording them their
right to submit their counter-affidavits.

Section 2, Article III of the Constitution provides:

SEC. 2. The right of the people to be secure in their persons, houses,

papers, and effects against unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.

What the Constitution underscores is the exclusive and personal responsibility of the
issuing judge to satisfy himself of the existence of probable cause. But the judge is
not required to personally examine the complainant and his witnesses. Following
established doctrine and procedure, he shall (1) personally evaluate the report and
the supporting documents submitted by the prosecutor regarding the existence of
probable cause, and on the basis thereof, he may already make a personal
determination of the existence of probable cause; and (2) if he is not satisfied that
probable cause exists, he may disregard the prosecutors report and require the
submission of supporting affidavits of witnesses to aid him in arriving at a
conclusion as to the existence of probable cause.[37]

In determining probable cause for the issuance of the warrant of arrest in the case at
bench, we find nothing wrong with the procedure adopted by the trial judge --- he
relied on the resolution of the prosecutor, as well as the supporting documents
submitted by the respondent. There is no provision of law or procedural rule which
makes the submission of counter-affidavits mandatory before the judge can
determine whether or not there exists probable cause to issue the warrant.

In light of the foregoing, it appears that the proper procedure was followed by the
prosecutor in determining probable cause for the filing of the informations, and by
the trial court judge in determining probable cause for the issuance of the warrants
of arrest. To reiterate, preliminary investigation was not mandatory, and the
submission of counter-affidavit was not necessary.

However, notwithstanding the proper observance of the procedure laid down by the
Rules, a closer scrutiny of the records reveals that the Informations should not have
been filed and the warrants of arrest should not have been issued, because of lack of
probable cause.

Probable cause, for purposes of filing a criminal information, has been defined as
such facts as are sufficient to engender a well-founded belief that a crime has been
committed and that the accused is probably guilty thereof.[38] It is the existence of
such facts and circumstances as would excite the belief in a reasonable mind, acting
on the facts within the knowledge of the prosecutor, that the person charged was
guilty of the crime for which he is to be prosecuted.[39] A finding of probable cause
needs only to rest on evidence showing that, more likely than not, a crime has been
committed and that it was committed by the accused.[40]

On the other hand, we have defined probable cause for the issuance of a warrant of
arrest as the existence of such facts and circumstances that would lead a reasonably
discreet and prudent person to believe that an offense has been committed by the
person sought to be arrested.[41]

To accord respect to the discretion granted to the prosecutor and for reasons of
practicality, this Court, as a rule, does not interfere with the prosecutors
determination of probable cause. Otherwise, courts would be swamped with
petitions to review the prosecutors findings in such investigations.[42] In the same
way, the general rule is that this Court does not review the factual findings of the
trial court, which include the determination of probable cause for the issuance of a
warrant of arrest.[43] It is only in exceptional cases when this Court may set aside the
conclusions of the prosecutor and the trial judge on the existence of probable cause,
that is, when it is necessary to prevent the misuse of the strong arm of the law or to
protect the orderly administration of justice.[44] The facts obtaining in the present
case warrant the application of the exception.

Petitioners were charged with violation of par. 2, Article 172 of the RPC or
Introduction of Falsified Document in a Judicial Proceeding. The elements of the
offense are as follows:

1. That the offender knew that a document was falsified by another


2. That the false document is embraced in Article 171 or in any

subdivisions No. 1 or 2 of Article 172.

3. That he introduced said document in evidence in any judicial


The falsity of the document and the defendants knowledge of its falsity are essential
elements of the offense.[46]

The Office of the City Prosecutor filed the Informations against the petitioners on
the basis of the complaint-affidavit of the respondent, together with the following
attached documents: the motion to dismiss and answer filed by the petitioners in
Civil Case No. 754; petitioners pre-trial brief in said case; the alleged falsified
documents; a copy of the minutes of the regular meeting of ISC during the election
of the board; and the list of stockholders of ISC.[47] On the basis of these documents
and on the strength of the affidavit executed by the respondent, the prosecutor
concluded that probable cause exists. These same affidavit and documents were used
by the trial court in issuing the warrant of arrest.

Contrary to the findings of the MTCC, as affirmed by the Court of Appeals, we find
the complaint-affidavit and attachments insufficient to support the existence of
probable cause. Specifically, the respondent failed to sufficiently establish prima
facie that the alleged documents were falsified. In support of his claim of falsity of
the documents, the private respondent stated in his complaint-affidavit that Herman
Ponce, Julie Abad and Marilyn Ong, the alleged signatories of the questioned letters,
did not actually affix their signatures; and that they were not actually officers or
stockholders of ISCI.[48] He further claimed that Enrique Montillas signature
appearing in another memorandum addressed to respondent was forged.[49] These
are mere assertions, insufficient to warrant the filing of the complaint or the issuance
of the warrant of arrest.

It must be emphasized that the affidavit of the complainant, or any of his witnesses,
shall allege facts within their (affiants) personal knowledge. The allegation of the
respondent that the signatures of Ponce, Abad, Ong and Montilla were falsified does
not qualify as personal knowledge. Nowhere in said affidavit did respondent state
that he was present at the time of the execution of the documents. Neither did he
claim that he was familiar with the signatures of the signatories. He simply made a
bare assertion that the signatories were mere dummies of ISCI and they were not in
fact officers, stockholders or representatives of the corporation. At the very least, the
affidavit was based on respondents personal belief and not personal
knowledge.[50] Considering the lack of personal knowledge on the part of the
respondent, he could have submitted the affidavit of other persons who are qualified
to attest to the falsity of the signatures appearing in the questioned documents.One
cannot just claim that a certain document is falsified without further stating the basis
for such claim, i.e., that he was present at the time of the execution of the document
or he is familiar with the signatures in question. Otherwise, this could lead to abuse
and malicious prosecution. This is actually the reason for the requirement that
affidavits must be based on the personal knowledge of the affiant. The requirement
assumes added importance in the instant case where the accused were not made to
rebut the complainants allegation through counter-affidavits.

Neither can the respondent find support in the documents attached to his
complaint-affidavit. The minutes of the regular meeting, as well as the list of
stockholders, could have possibly shown that the signatories were not officers or
stockholders of the corporation. However, they did not at all show that the
questioned documents were falsified. In the letter allegedly signed by Ponce and
Abad, there was no representation that they were the president and corporate
secretary of ISCI. Besides, the mere fact that they were not officers or stockholders
of ISCI does not necessarily mean that their signatures were falsified. They still
could have affixed their signatures as authorized representatives of the corporation.
True, a finding of probable cause need not be based on clear and convincing
evidence, or on evidence beyond reasonable doubt. It does not require that the
evidence would justify conviction. Nonetheless, although the determination of
probable cause requires less than evidence which would justify conviction, it should
at least be more than mere suspicion.[51] While probable cause should be determined
in a summary manner, there is a need to examine the evidence with care to prevent
material damage to a potential accuseds constitutional right to liberty and the
guarantees of freedom and fair play, and to protect the State from the burden of
unnecessary expenses in prosecuting alleged offenses and holding trials arising from
false, fraudulent or groundless charges.[52] It is, therefore, imperative for the
prosecutor to relieve the accused from the pain and inconvenience of going through
a trial once it is ascertained that no probable cause exists to form a sufficient belief
as to the guilt of the accused.[53]

Considering that the respondent failed to adduce sufficient evidence to support his
claim that the documents were falsified, it follows that the introduction of the
questioned documents in Civil Case No. 754 is not an offense punished by any
provision of the Revised Penal Code or any other law. The petitioners should not be
burdened with court proceedings, more particularly a criminal proceeding, if in the
first place, there is no evidence sufficient to engender a well-founded belief that an
offense was committed.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals,

dated June 20, 2000, in CA-G.R. SP No. 49666 is REVERSED and SET
ASIDE. The Temporary Restraining Order dated August 2, 2000 is hereby made
permanent. Accordingly, the Municipal Trial Court in Cities, City of Bago,
is ORDERED to DISMISS Criminal Case Nos. 6683-86.