[ G.R. No. 124682. February 15, 1999]




Quoted hereunder, for your information, is a resolution of this Court dated FEB 15, 1999.

G.R. No. 124682 (Plaza Tours and Travel Corporation v. Hon. Teofisto Guingona, in his capacity as Secretary of the Department of Justice, and Mario Balucero.)

On February 16, 1993, petitioner Plaza Tours and Travel Corporation, through its President Ernesto Salgado, filed a complaint against private respondent Mario Balucero for estafa and qualified theft. Petitioner alleged that it entered into an agreement with private respondent whereby the latter will temporarily house in his garage in Bicutan, Para�aque, Metro Manila buses owned by petitioner along with buses of other entities; that while in private respondent's custody, however, the buses were either cannibalized of parts or lost; that private respondent promised Salgado that he would restore the parts he had removed so that petitioner's buses could be transferred by petitioner to another garage; that sometime in January 1994, petitioner learned that the buses were missing; and that the letter dated March 4, 1994 which petitioner had sent to private respondent, demanding the return of its buses, was returned to petitioner because private respondent had moved out of his last known residence.

In his counter affidavit, private respondent alleged that the buses claimed by petitioner were represented to him as buses owned by Philippine Lawin Bus Co., Inc. (PLBC) which its president, Marciano Tan, asked him to accommodate in his (private respondent's) garage at No. 16 Acsie Road, Severina, Bicutan, Para�aque; that he agreed provided that PLBC would share in the payment of rentals for the garage as well as towing charges; that PLBC however failed to pay the its share and letters of demand could not be served on Marciano Tan because he could not be located; that in December, 1993, private respondent transferred the buses to Sto. Domingo because he could no longer afford the rent on the garage in Bicutan; that he could not have taken spare parts from the buses claimed by petitioner because his (private respondent's) buses are of different brand; that he had no contact whatsoever with petitioner nor did he know that it owned the buses which he thought was PLBC's; and that he was willing to return petitioner's buses if petitioner would pay him the rental and storage fees and the cost of towing for the same.

On March 30, 1995, the investigating prosecutor recommended the dismissal of the complaint for lack of merit. The recommendation was approved by the Provincial Prosecutor on April 28, 1995.

On August 4, 1995, petitioner filed a petition for review with the Office of the Secretary of Justice asking for the reversal of the resolution dismissing its complaint.

On January 17, 1996, public respondent, through Assistant Chief State Prosecutor Apolinario G. Exevea, denied the petition for review, thus:

This refers to your petition for review of the resolution of the Provincial Prosecutor of Rizal in I.S. No. 95-1647 dismissing the complaint for qualified theft and estafa against Mario Balucero aka Mario Namzan.

Section 9 of Department Order No. 223 dated 30 June 1993 provides that the Secretary of Justice may dismiss outright an appeal if there is no showing of any reversible error in the questioned resolution. A perusal of the case record failed to show such error committed by the investigating prosecutor that would warrant a reversal of the questioned resolution.

Consequently, we resolve to deny your petition.

Petitioner moved for reconsideration but its motion was likewise denied. Hence this petition.

In its resolution of July 3, 1996, the Court required both the public and private respondents to comment on the petition. The former has already done so. private respondent's counsel of record, Atty. Anthony B. Bayawa III, however, in a manifestation dated August 11, 1997 stated that as early as August 21, 1996 he had already filed a motion to withdraw as private respondent's counsel in the Department of Justice and that private respondent had taken from him the records of the case. In the resolution of October 15, 1997, the Court required petitioner to furnish it the present address of private respondent. Upon receipt of petitioner's compliance, the Court in the resolution of December 3, 1997 required private respondent to submit the name and address of his new counsel, but the said resolution was returned unserved for the reason that "RTS unknown." The Court therefore in the resolution of October 5, 1998 required Atty. Bayawa III to submit private respondent's address. Atty. Bayawa III, however, in his manifestation dated November 15, 1998 stated that he does not know private respondent's address in Manila. In view of the foregoing, the Court RESOLVED to NOTE Atty. Bayawa III's manifestation and to DISPENSE WITH private respondent's comment.

Petitioner contends that there is prima facie evidence to sustain its charges against private respondent considering the reply-affidavit of Marciano T. Tan of PLBC denying that he had entered into a contract with private respondent to share in the lease of the garage in Bicutan, and the fact that private respondent could not have known where to find Tan as he had been to the latter's office several times and that there was no offer to return the buses on private respondent's part for more than two years. Petitioner also contends that public respondent committed grave abuse of discretion in denying its petition without even including in its resolution an evaluation of the evidence or discussion of the merits of its petition, and that the investigating prosecutor has "obviously arrogated unto herself the function of passing upon the guilt or innocence of the deceased."

The contentions are without merit.

First of all, the Court is not a trier of facts. It will not review the findings of the investigating prosecutor and/or respondent Secretary of Justice, so as long as there is substantial evidence to support their findings. (See Tan v. Ombudsman, G.R. Nos. 114332 and 114895, Sept. 10, 1998; Ogburn v. Court of Appeals, 212 SCRA 483 (1992)) What's more, as found by the investigating prosecutor:

The transaction between the parties is a lease or depositor-depository relationship agreement which cannot be converted to a criminal liability in case of default. There is no proof of theft because there was no witness to the effect that respondent took the spare parts. On this point, respondent's version that his buses are of (a) different type compared to that of complainant would bolster his controverting evidence. The buses were placed in the garage with payment of a (sic) storage fees. It is evident that buses were placed for storage only with respondent who is very willing to return them. Also, respondent cannot be charged of Estafa for lack of evidence of deceit or misappropriation.

Nor is there any basis for the contention that the investigating prosecutor arrogated unto herself the power to determine the innocence or guilt of the private respondent which is the province of the courts. She was merely doing her duty in preliminary investigation. The same is an executive, not a judicial function (People v. Navarro, 270 SCRA 393 (1997)), the purpose of which is "to secure the innocent against hasty, malicious and oppressive prosecutions, and to protect him from open and public accusation of crime, from the trouble expense, and anxiety of a public trial and also to protect the State from useless and expensive prosecutions." (Hashim v. Boncan, 71 Phil. 216 (1941))

Finally, it is not true that the resolution of the public respondent denying petitioner's petition for review was bereft of any evaluation of evidence of the case. Like the minute resolutions of this Court, by holding that "a perusal of the case record failed to show (reversible error) committed by the investigating prosecutor," the public respondent in effect adopted the findings of fact and evaluation of the evidence of his subordinates.

WHEREFORE, the petition is DISMISSED for lack of showing that the public respondent committed a grave abuse of its discretion.

Very truly yours,


Clerk of Court

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