[G.R. No. 138596. October 12, 2000] SR. FIDELIS ARAMBULO, petitioner, vs. HON. HILARION LAQUI, SR.

HELEN OJARIO and SR. BERNADINE JUAREZ, respondents. DECISION GONZAGA-REYES, J.: Before us is a Petition for Review on Certiorari of the Decisioni[1] of the Court of Appealsii[2] in CA-G.R. SP No. 47089 promulgated on March 01, 1999 and the subsequent Resolutioniii[3]dated May 11, 1999 denying petitioners Motion for Reconsideration. The facts of the case, as summarized by the appellate court, are as follows: On February 2, 1994, private respondents filed a joint complaint-affidavit for libel against petitioners before the Office of the City Prosecutor of Quezon City alleging that the latter circulated on December 21, 1993 a letter containing malicious imputations against them. An information for libel then was filed before the Metropolitan Trial Court of Quezon City on May 18, 1994. After the prosecution presented its evidence, petitioner filed a Demurrer to Evidence. Without resolving the incident, the Metropolitan Trial Court in its Order dated November 9, 1996 ruled that it had no jurisdiction over the case as the same falls under the original and exclusive jurisdiction of the Regional Trial Court, and ordered that the case be forwarded to the RTC for further proceedings. On November 29, 1996, the case was forwarded to branch 215 Regional Trial Court of Quezon City docketed as Criminal Case No. 96-6870. On January 3, 1997, petitioner filed a Motion to Dismiss on the ground of lack of jurisdiction and prescription of the offense of Libel. The RTC dismissed the case in an Order dated April 2, 1997 but, stating that the offense had not yet prescribed, ordered the City Prosecutor of Quezon City to re-file the Information for Libel with the RTC. On April 27, 1997, the Information for Libel was re-filed with respondent court docketed as Criminal Case No. Q97-70948. On June 17, 1997, petitioner filed a Motion to quash on the ground of prescription. The motion was denied in the assailed Resolution dated October 3, 1997. Petitioners Motion for Reconsideration was also denied in the other Assailed Order dated December 4, 1997.iv[4] Not satisfied with the Resolution and Order of the trial court, herein petitioner appealed to the Court of Appeals raising the issue of whether or not public respondent committed grave abuse of discretion or grossly erred in holding that the offense of libel in the instant case has not yet prescribed.v[5] The Court of Appeals, in its decision dated March 01, 1999, upheld the contention of the trial court that the offense of libel had not yet prescribed and consequently, dismissed the said petition. The appellate court likewise denied herein petitioners Motion for Reconsideration in its Resolution dated May 11, 1999.vi[6] Petitioner is now before this Court seeking a reversal of the decision of the Court of Appeals and contending that I.

THE COURT OF APPEALS ERRED IN RULING THAT THE CRIME OF LIBEL HAS NOT YET PRESCRIBED. II. THE COURT OF APPEALS ERRED IN RULING THAT PETITIONER HAS NOT BEEN DENIED HER CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL.vii[7] Under Article 90 of the Revised Penal Code, as amended, the crime of libel prescribes in one (1) year, to wit: ART. 90. Prescription of crime.- Crimes punishable by death, reclusion perpetua or reclusion temporal shall prescribe in twenty years. Crimes punishable by other afflictive penalties shall prescribe in fifteen years. Those punishable by a correctional penalty shall prescribe in 10 years; with the exception of those punishable by arresto mayor, which shall prescribe in five years. The crime of libel or other similar offenses shall prescribe in one year. (underscoring supplied) The said prescriptive period is computed under Article 91 of the Revised Penal Code, as follows: Art. 91. Computation of prescription of offenses. - The period of prescription shall commence to run from the day on which the crime is discovered by the offended party, the authorities, or their agents, and shall be interrupted by the filing of the complaint or information, and shall proceed to run again when such proceedings terminate without the accused being convicted or acquitted, or are unjustifiably stopped for any reason not imputable to him. The term of prescription shall not run when the offender is absent from the Philippine Archipelago. In the case at bench, the offense of libel allegedly occurred on December 21, 1993 when petitioner circulated a letter containing allegedly malicious imputations against private respondents Srs. Helen Ojario and Bernadine Juarez. At this point, the period of prescription for the alleged crime had already started to run. The one-year period of prescription for the crime was interrupted on February 2, 1994 when respondents filed a joint complaint-affidavitviii[8] for libel against petitioner before the Office of the city Prosecutor in Quezon city. At this point, the prescription period had already run for forty-two (42) days. A preliminary investigation by the Office of the City prosecutor was thus conducted. On April 27, 1994, Asst. City Prosecutor Ma. Aurora Escasa-Ramos issued a Resolution stating that probable cause exists against petitioner and recommended the filing of an information for libel against her. Consequently, an informationix[9] for libel was filed against petitioner on May 18, 1994 before the Metropolitan Trial Court of Quezon City, Branch 32x[10] Despite the fact that the Metropolitan Trial Court had no jurisdiction over the crime of libel, the said court proceeded to conduct trial on the merits. After the prosecution had rested, petitioner filed a Demurrer to Evidence dated September 18, 1996. However, instead of acting on the said demurrer, the Metropolitan Trial court, on November 08, 1996, issued an Orderxi[11] ruling that it had no jurisdiction over the crime of libel as the same falls under the exclusive jurisdiction of the Regional Trial Court. Instead of dismissing the case outright, the MTC ordered the forwarding of the records of the case to the Regional Trial Court for further proceedings. The case was eventually raffled off to Branch 215 of the Regional Trial Court of Quezon Cityxii[12] On the basis of a Motion to Dismissxiii[13] filed by petitioner, Branch 215 of the Regional Trial Court dismissed the case on April 2, 1997 on the ground of lack of jurisdiction as the information against petitioner should have been refiled anew. The court ruled, however, that the crime had not yet prescribed and ordered the re-filling of the

casexiv[14]. On April 27, 1997, the Office of the City Prosecutor re-filed the case with the Regional Trial Court and eventually the same was raffled to Branch 218 of the said courtxv[15]. Petitioner tried to have this case dismissed on the ground of prescription but her motion to quashxvi[16]the information was denied by Branch 218 of the Quezon City Regional Trial Court in a Resolutionxvii[17]dated October 3, 1997. The denial by the Regional Trial Court of petitioners motion to quash was subsequently upheld by the Court of Appeals. It is the contention of petitioner that the prescription period for the crime of libel charged against her commenced to run again when the Assistant City prosecutor recommended the filing of the information for libel. Petitioner further argues that the prescriptive period could have been interrupted again had the information been filed with the Regional Trial Court, the court with the proper jurisdiction to try the case for libel. Considering however that the case was filed before the Metropolitan Trial Court, which under the law does not have jurisdiction over the crime of libel, the period of prescription continued to run its course. Consequently, petitioner concludes that when the information for libel was finally filed with the Regional Trial Court, the crime had already prescribed and the State can no longer pursue the case against her. In support of her arguments, petitioner questions the reliance made by the Regional Trial Court and the Court of Appeals in the landmark case of People vs. Olartexviii[18]Petitioner submits that the adherence to the Olarte case must be examined considering that in the said case, the principal issue was whether or not the filing of a complaint in the Municipal Trial Court for purposes of preliminary investigation, interrupts the period of prescription of a crime. Petitioner argues that the cited case is inapplicable as it is not disputed in the case at bench that the period of prescription was interrupted during the process of preliminary investigation. We are not persuaded. In the landmark case of People vs. Olarte, this Court speaking through Justice J.B.L. Reyes, finally resolved the then conflicting views as to whether or not the filing of a complaint with the Municipal Trial Court for purposes of preliminary investigation suspends the running of the prescriptive period for the crime. The Court restated the correct and prevailing doctrine, as follows: In view of this diversity of precedents, and in order to provide guidance for the Bench and Bar, this Court has reexamined the question and, after mature consideration, has arrived at the conclusion that the true doctrine is, and should be, the one established by the decisions holding that the filing of the complaint with the Municipal Court, even if it be merely for purposes of preliminary examination or investigation, should, and does, interrupt the period of prescription of the criminal responsibility, even if the court where the complaint or information is filed can not try the case on the merits. Several reasons buttress this conclusion: first, the text of Article 91 of the Revised Penal code, in declaring that the period of prescription shall be interrupted by the filing of the complaint or information without distinguishing whether the complaint is filed in the court for preliminary examination or investigation merely, or for action on the merits. Second , even if the court where the complaint or information is filed may only proceed to investigate the case, its actuations already represent the initial step of the proceedings against the offender. Third, it is unjust to deprive the injured party the right to obtain vindication on account of delays that are not under his control. All that the victim of the offense may do on his part to initiate the prosecution is to file the requisite complaint. And it is no argument that Article 91 also expresses that the interrupted prescription shall commence to run again when such proceedings terminate without the accused being convicted or acquitted, thereby indicating that the court in which the complaint or information is filed must have the power to convict or acquit the accused. Precisely, the trial on the merits usually terminates in conviction or acquittal, not otherwise. But it is in the court conducting a preliminary investigation where the proceedings may terminate without conviction or acquittal, if the court should discharge the accused because no prima facie case had been shown. Subsequently, this Court, in Francisco vs. Court of Appealsxix[19], broadened the scope of Olarte by holding that the filing of the complaint with the fiscals office also suspends the running of the prescriptive period.

Petitioner insists that the ruling in Olarte with respect to the interruption of the prescriptive period is not applicable. In the case at bench, the fact that the period of prescription was interrupted by the filing of private respondents joint affidavit with the Quezon City Prosecutors Office is not disputed. The Olarte case, however, makes several other pronouncements that are determinative of the issues raised by petitioner. It is clear from the Olarte case that the filing of the complaint or information for purposes of preliminary investigation represents the initial step of the proceedings against the offender. This is one of the reasons why such filing is deemed as having interrupted the period of prescription for the prosecution of a crime. This period of prescription commences to run again when the proceedings terminate without conviction or acquittal, if the court (or prosecutor) should discharge the accused because no prima facie case has been shown.xx[20] It is thus evident that petitioners first premise that the period of prescription commenced to run again when the Quezon City prosecutors Office recommended the filing of a criminal complaint against her is incorrect. When the City Prosecutor recommended the filing of libel charges against petitioner, the proceedings against her were not terminated, precisely because a prima facie case for libel was found against her. Instead of terminating the proceedings against petitioner, the resolution of the city prosecutor actually directed the continuation of the proceedings against the petitioner by the filing of the appropriate information against her and by the holding of trial on the merits. As such, when the information for libel was filed with the Metropolitan Trial Court, the period of prescription for the crime was still suspended. Another important teaching in Olarte is that it is unjust to deprive the injured party of the right to obtain vindication on account of delays that are not under his control. This is because in criminal prosecutions, the only thing that the victim of the offense may do on his part to initiate the prosecution is to file the requisite complaint. In the case at bench, private respondents were not remiss in their right to seek grievance against respondent as they filed their complaint before the city prosecutor forty-two days after the alleged crime of libel occurred. It was the Office of the City Prosecutor that committed an error when it filed the complaint with the Metropolitan Trial Court. The error was probably due to the confusion as to the proper venue for the crime of libel brought about by the passage of R.A. 7691xxi[21] which took effect on April 15, 1994. Under Section 2 of the said Republic Act, the jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts was expanded to include all offenses punishable with imprisonment not exceeding six (6) years. However, libel, which is punishable by imprisonment ranging from six months and one day to four yearsxxii[22] is not covered as the said law excludes from its coverage cases within the exclusive jurisdiction of the Regional Trial Courtsxxiii[23]. Under Article 360 of the Revised Penal Code, the information for libel should be filed with the Court of First Instance, now the Regional Trial Court. The confusion was cleared up when this Court issued Administrative Order No. 104-96 dated October 21, 1996 which categorically stated that LIBEL CASES SHALL BE TRIED BY THE REGIONAL TRIAL COURTS HAVING JURISDICTION OVER THEM TO THE EXCLUSION OF THE METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS IN CITIES, MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT TRIAL COURTS.xxiv[24] Evidently, branch 215 of the Metropolitan Trial Court of Quezon City was not spared the confusion brought about by R.A. 7691, as its dismissal of the case then pending before it was made only on November 8, 1996 or more than two years after it had taken cognizance of the case. Notably, the dismissal by the Metropolitan Trial Court took place a mere eighteen (18) days after the issuance of S.C. Administrative Order No. 104-96. The mistake of the Office of the City Prosecutor in filing the complaint and of the Metropolitan Trial Court in taking cognizance of the case was thus understandable. The error was immediately rectified by the said court upon realizing its mistake when it ruled it was the Regional Trial Court which had the proper jurisdiction over the case. This mistake should not operate to prejudice the interest of the state to prosecute criminal offenses and, more importantly, the right of the offended party to obtain grievance.

Moreover, the doctrine in People vs. Olarte, as applied in later cases, was not meant to apply solely to cases where the filing of the complaint with the municipal trial court or the prosecutors office operates to interrupt the prescription period for the prosecution of a crime. In People vs. Galanoxxv[25], an information was filed with the Batangas Regional Trial Court even though the evidence of both the prosecution and defense shows that the crime was committed in Manila. This Court, applying People vs. Olarte, held that it was only when the trial court dismissed the case due to lack of jurisdiction that the proceedings therein terminated without conviction and acquittal and it was only then that the prescriptive period (which was interrupted during the during the pendency of the case in the Batangas Court) commenced to run again. In People vs. Enrilexxvi[26], informations were filed against civilians before military tribunals which had no jurisdiction over the persons of these civilians. These civilians questioned the re-filing of the cases against them before the civil courts raising, among others, that the crimes for which they are being charged have already prescribed. This Court, applying by analogy the ruling in the Olarte case, threw out the defense of prescription and held that the filing of the first indictments suspended the running of the prescriptive period, and the prosecutions under the informations to be filed should be regarded as mere continuations of the previous proceedings. At the very least, the Court ruled, the filing of the first charges should be considered as having interrupted the prescriptive period notwithstanding the lack of jurisdiction of the military tribunal in which they were filed. More recently, in the case of Reodica vs. Court of Appealsxxvii[27], an information for reckless imprudence resulting in damage to property with slight physical injuries was filed with the Regional Trial Court even though the offense was within the exclusive jurisdiction of the municipal trial court. The Court, even as it dismissed the cases pending before the Regional Trial Court for lack of jurisdiction, disregarded the defense of prescription raised by the accused. The Court, citing Olarte and the subsequent cases of Francisco vs. Court of Appealsxxviii[28] and People vs. Cuaresmaxxix[29], ruled that the prescriptive period for the quasi offenses in question was interrupted by the filing of the complaint with the fiscals office three days after the vehicular mishap and remained tolled pending the termination of the case. From these cases, it is clear that the Apellate Court committed no reversible error in ruling that the offense of libel charged against petitioner had not yet prescribed. The period of prescription for the crime was interrupted when the complaint was lodged with the Office of the City Prosecutor and remained tolled pending the termination of the case against petitioner. Branch 218 of the Regional Trial Court of Quezon City, therefore, correctly assumed jurisdiction over the case of petitioner as the offense of libel for which she was being charged has not yet prescribed. Petitioners other argument that she has been denied her right to a speedy trial deserves scant consideration. Wellestablished is the doctrine that the right to a speedy trial is violated only where there is an unreasonable, vexatious and oppressive delay without participation or fault of the accused, or when unjustified postponements are sought which prolong the trial for an unreasonable length of timexxx[30]. In the case at bench, besides the filing of the petitions before the Court of Appeals and this Court, petitioner had likewise filed a Motion to Quash and a Motion for Reconsideration with the Regional Trial Court of Quezon City, Branch 218. As such, it is clear that petitioner is not without fault in the delay in the prosecution of the case against her. Wherefore, the petition is hereby DENIED, and the decision of the Court of Appeals dated May 1, 1999 is hereby AFFIRMED. SO ORDERED.

[G.R. No. 122274. July 31, 1996] SUSAN V. LLENES, petitioner, vs. HON. ISAIAS P. DICDICAN, Presiding Judge, Regional Trial Court of Cebu, Branch 11, HON. AMADO B. BAJARIAS, SR., Presiding Judge, Municipal Trial Court, Branch 7, and VIVIAN G. GINETE, respondents. DECISION DAVIDE, JR., J.: The key issue raised in this special civil action for certiorari under Rule 65 of the Rules of Court is whether the filing with the Office of the Ombudsman of a complaint against a government official for grave oral defamation interrupts the period of prescription of such offense. We find this issue to be important enough to merit our attention. We thus resolved to give due course to the petition, consider the private respondent's comment on the petitionviii[1] as the answer thereto, and decide it on the basis of the pleadings which have sufficiently discussed the issue. The factual and procedural antecedents are not disputed. On 13 October 1993, private respondent Vivian G. Ginete, then officer-in-charge of the Physical Education and School Sports (PESS) Division of the Regional Office of Region VII in Cebu City of the Department of Education, Culture and Sports (DECS), filed with the Office of the Deputy Ombudsman for the Visayas (hereinafter Ombudsman-Visayas) a complaint for grave oral defamationviii[2] allegedly committed on 23 September 1993 by petitioner Susan V. Llenes, an Education Supervisor II of the same Regional Office. The petitioner was required to file a counter-affidavit pursuant to Administrative Order No. 7 of the Office of the Ombudsman, but she failed to do so. In his resolution of 15 March 1994,viii[3] Antonio B. Yap, Graft Investigation Officer I of the said office, recommended that the case be indorsed to the Office of the City Prosecutor of Cebu City for the filing of the necessary information against the petitioner. This resolution was approved by the Deputy Ombudsman-Visayas.

On 28 March 1994, the City Prosecutor of Cebu City filed with the Municipal Trial Court (MTC) in Cebu City an informationviii[4] for grave oral defamation against the petitioner. This was docketed as Criminal Case No. 35684-R and assigned to Branch 7 thereof. On 30 May 1994, the petitioner filed a motion to quashviii[5] the information on the ground that the "criminal action or liability" has been extinguished. She contended that under Article 90 of the Revised Penal Code, the offense of grave oral defamation prescribes in months and that since the information was filed only on 28 March 1994, or 186 days or 6 months and 6 days after its alleged commission, the crime had then already prescribed. In support thereof, she cited the decision in "Zalderiaviii[6] vs. Reyes, Jr., G.R. No. 102342, July 3, 1992, 211 SCRA 277," wherein this Court ruled that the filing of an information at the fiscal's office will not stop the running of the prescriptive period for crimes. In her opposition,viii[7] the private respondent cited Section 1, Rule 110 of the Rules of Court which provides, inter alia, that for offenses not subject to the rule on summary procedure in special cases and which fall within the jurisdiction of Municipal Trial Courts and Municipal Circuit Trial Courts, the filing of the complaint directly with the said court or with the fiscal's office interrupts the period of prescription of the offense charged. The filing of the complaint by the private respondent with the Office of the Deputy Ombudsman-Visayas was equivalent to the filing of a complaint with the fiscal's (now prosecutor's) office under said Section 1 pursuant to its powers under Section 15(1) of R.A. No. 6770, otherwise known as the Ombudsman Act of 1989. The private respondent further claimed that Zaldivia is inapplicable because it involves an offense covered by the rule on summary procedure and it explicitly stated that Section 1 of Rule 110 excludes cases covered by the Rule on Summary Procedure. The Municipal Trial Court, per public respondent Judge Bajarias, denied the motion to quash in the order of 18 July 1994.viii[8] It fully agreed with the stand of the private respondent. Her motion to reconsiderviii[9] the above order having been denied on 29 November 1994,viii[10] the petitioner filed with the Regional Trial Court (RTC) of Cebu a special civil action for certiorari,viii[11] which was docketed therein as Civil Case No. CEB-16988. The case was assigned to Branch 11. In its decision of 3 July 1995,viii[12] the RTC, per public respondent Judge Isaias P. Dicdican, affirmed the challenged orders of Judge Bajarias of 18 July 1994 and 29 November 1994. It ruled that the order denying the motion to quash is interlocutory and that the petitioner's remedy, per Acharon vs. Purisima,viii[13] reiterated in People vs. Bans,viii[14] was to go to trial without prejudice on her part to reiterate the special defense she had invoked in her motion to quash and, if after trial on the merits an adverse decision is rendered, to appeal therefrom in the manner authorized by law. Besides, the petitioner has not satisfactorily and convincingly shown that Judge Bajarias has acted with grave abuse of discretion in issuing the orders considering that the ground invoked by her does not appear to be indubitable. And even assuming that the MTC erred in venturing an opinion that the filing of the complaint with the Office of the Ombudsman is equivalent to the filing of a complaint with the fiscal's office, such error is merely one of judgment. For, there is no decided case on the matter, and the substantive laws have not clearly stated as to what bodies or agencies of government should complaints or informations be filed in order that the period of prescription of crimes or offenses should be considered interrupted. Article 91 of the Revised Penal Code simply states that the prescriptive period shall be interrupted by

the "filing of the complaint or information" and has not specified further where such complaint or information should be filed. Since the Regional Trial Court denied her motion to reconsiderviii[15] the decision in the order of 23 August 1995,viii[16] the petitioner filed this special civil action wherein she reiterates the arguments she adduced before the two courts below. The private respondent likewise did nothing more in her responsive pleading than reiterate what she had raised before the said courts. The basic substantive laws on prescription of offenses are Articles 90 and 91 of the Revised Penal Code for offenses punished thereunder, and Act No. 3326, as amended, for those penalized by special laws. Under Article 90 of the Revised Penal Code, the crime of grave oral defamation, which is the subject of the information in Criminal Case No. 35684-R of the MTC of Cebu, prescribes in 6 months. Since Article 13 of the Civil Code provides that when the law speaks of months it shall be understood to be of 30 days, then grave oral defamation prescribes in 180 days.viii[17] Article 91 of the Revised Penal Code provides: ART. 91. Computation of prescription of offenses. The period of prescription shall commence to run from the day on which the crime is discovered by the offended party, the authorities, or their agents, and shall be interrupted by the filing of the complaint or information, and shall commence to run again when such proceedings terminate without the accused being convicted or acquitted, or are unjustifiably stopped for any reason not imputable to him. The term of prescription shall not run when the offender is absent from the Philippine Archipelago. In the instant case, the alleged defamatory words were directly uttered in the presence of the offended party on 23 September 1993. Hence, the prescriptive period for the offense started to run on that date. The matter of interruption of the prescriptive period due to the filing of the complaint or information had been the subject of conflicting decisions of this Court. In People vs. Tayco,viii[18] People vs. Del Rosario,viii[19] and People vs. Coquia,viii[20] this Court held that it is the filing of the complaint or information with the proper court, viz., the court having jurisdiction over the crime, which interrupts the running of the period of prescription. On the other hand, in the first case of People vs. Olarte,viii[21] a case for libel, this Court held that the filing of the complaint with the justice of the peace court even for preliminary investigation purposes only interrupts the running of the statute of limitations. However, the decision of 28 February 1967 of this Court in the second case of People vs. Olarteviii[22] resolved once and for all what should be the doctrine, viz., that the filing of the complaint with the municipal trial court even for purposes of preliminary investigation only suspends the running of the prescriptive period. Thus: Analysis of the precedents on the issue of prescription discloses that there are two lines of decisions following differing criteria in determining whether prescription of crimes has been interrupted. One line of precedents holds that the filing of the complaint with the justice of the peace (now municipal judge) does interrupt the course of the prescriptive term: People vs. Olarte, L-13027, June 30, 1960 and cases cited therein; People vs. Uba, L-13106,

October 16, 1959; People vs. Aquino, 68 Phil. 588, 590. Another series of decisions declares that to produce interruption the complaint or information must have been filed in the proper court that has jurisdiction to try the case on its merits: People vs. Del Rosario, L-15140, December 29, 1960; People vs. Coquia, L-15456, June 29, 1963. In view of this diversity of precedents, and in order to provide guidance for Bench and Bar, this Court has reexamined the question and, after mature consideration, has arrived at the conclusion that the true doctrine is, and should be, the one established by the decisions holding that the filing of the complaint in the Municipal Court, even if it be merely for purposes of preliminary examination or investigation, should, and does, interrupt the period of prescription of the criminal responsibility, even if the court where the complaint or information is filed cannot try the case on its merits. Several reasons buttress this conclusion: First, the text of Article 91 of the Revised Penal Code, in declaring that the period of prescription "shall be interrupted by the filing of the complaint or information" without distinguishing whether the complaint is filed in the court for preliminary examination or investigation merely, or for action on the merits. Second, even if the court where the complaint or information is filed may only proceed to investigate the case, its actuations already represent the initial step of the proceedings against the offender. Third, it is unjust to deprive the injured party of the right to obtain vindication on account of delays that are not under his control. All that the victim of the offense may do on his part to initiate the prosecution is to file the requisite complaint. And it is no argument that Article 91 also expresses that the interrupted prescription "shall commence to run again when such proceedings terminate without the accused being convicted or acquitted," thereby indicating that the court in which the complaint or information is filed must have power to acquit or convict the accused. Precisely, the trial on the merits usually terminates in conviction or acquittal, not otherwise. But it is in the court conducting a preliminary investigation where the proceedings may terminate without conviction or acquittal, if the court should discharge the accused because no prima facie case has been shown. Considering the foregoing reasons, the Court hereby overrules the doctrine of the cases of People vs. Del Rosario, L-15140, December 29, 1960; and People vs. Coquia, L-15456, promulgated June 29, 1963. Then, in its decision of 30 May 1983 in Francisco vs. Court of Appeals,viii[23] this Court not only reiterated Olarte of 1967 but also broadened its scope by holding that the filing of the complaint in the fiscal's office for preliminary investigation also suspends the running of the prescriptive period. Thus: Article 91 of the Revised Penal Code provides that . . . . Interpreting the foregoing provision, this Court in People vs. Tayco held that the complaint or information referred to in Article 91 is that which is filed in the proper court and not the denuncia or accusation lodged by the offended party in the Fiscal's Office. This is so, according to the court, because under this rule it is so provided that the period shall commence to run again when the proceedings initiated by the filing of the complaint or information terminate without the accused being convicted or acquitted, adding that the proceedings in the Office of the Fiscal cannot end there in the acquittal or conviction of the accused.

The basis of the doctrine in the Tayco case, however, was disregarded by this Court in the Olarte case, cited by the Solicitor General. It should be recalled that before the Olarte case, there was diversity of precedents on the issue of prescription. One view declares that the filing of the complaint with the justice of the peace (or municipal judge) does interrupt the course of prescriptive term. This view is found-in People v. Olarte, L-13027, June 30, 1960 and cases cited therein; People v. Uba, L-13106, October 16, 1959; People v. Aquino, 68 Phil. 588, 590. The other pronouncement is that to produce interruption, the complainant or information must have been filed in the proper court that has jurisdiction to try the case on its merits, found in the cases of People v. del Rosario, L-15140, December 29, 1960; People v. Coquia, L-15456, June 29, 1963. The Olarte case set at rest the conflict views, and enunciated the doctrine aforecited by the Solicitor General. The reasons for the doctrine which We find applicable to the case at bar read: xxx xxx xxx

As is a well-known fact, like the proceedings in the court conducting a preliminary investigation, a proceeding in the Fiscal's Office may terminate without conviction or acquittal. As Justice Claudio Teehankee has observed: To the writer's mind, these reasons logically call with equal force, for the express overruling also of the doctrine in People vs. Tayco, 73 Phil. 509, (1941) that the filing of a complaint or denuncia by the offended party with the City Fiscal's Office which is required by law to conduct the preliminary investigation does not interrupt the period of prescription. In chartered cities, criminal prosecution is generally initiated by the filing of the complaint or denuncia with the city fiscal for preliminary investigation. In the case of provincial fiscals, besides being empowered like municipal judges to conduct preliminary investigations, they may even reverse actions of municipal judges with respect to charges triable by Courts of First Instance x x x. Clearly, therefore, the filing of the denuncia or complaint for intriguing against honor by the offended party, later changed by the Fiscal to grave oral defamation, even if it were in the Fiscal's Office, 39 days after the alleged defamatory remarks were committed (or discovered) by the accused interrupts the period of prescription. (Italics supplied) This Court reiterated Francisco in its resolution of 1 October 1993 in Calderon-Bargas vs. Regional Trial Court of Pasig, Metro Manila.viii[24] The procedural law articulating Francisco is the last paragraph of Section 1, Rule 110 (Prosecution of Offenses) of the Rules of Court. We quote the entire Section for a better understanding of the last paragraph: SEC. 1. How instituted. For offenses not subject to the rule on summary procedure in special cases, the institution of criminal actions shall be as follows:

(a)

For offenses falling under the jurisdiction of the Regional Trial Courts, by filing the complaint with the appropriate officer for the purpose of conducting the requisite preliminary investigation therein;

(b) For offenses falling under the jurisdiction of the Municipal Trial Courts and Municipal Circuit Trial Courts, by filing the complaint or information directly with the said courts, or a complaint with the fiscal's office. However, in Metropolitan Manila and other chartered cities, the complaint may be filed only with the office of the fiscal. In all cases, such institution shall interrupt the period of prescription of the offense charged. (Italics supplied) The rule, however, is entirely different under Act No. 3326, as amended, whose Section 2 explicitly provides that the period of prescription shall be interrupted by the institution of judicial proceedings, i.e., the filing of the complaint or information with the court. The said section reads: SEC. 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof and the institution of judicial proceedings for its investigation and punishment. The prescription shall be interrupted when proceedings are instituted against the guilty person, and shall begin to run again if the proceedings are dismissed for reasons not constituting double jeopardy. (Italics supplied) And so, in Zaldivia vs. Reyes,viii[25] this Court held that the proceedings referred to in said Section 2 are "judicial proceedings," which means the filing of the complaint or information with the proper court. Zaldivia, however, provides no safe refuge to the petitioner, and her invocation thereof is misplaced. In the first place, it involved a violation of an ordinance, which is covered by the Rule on Summary Procedure. By its express mandate, Section 1, Rule 110 of the Rules of Court does not apply to cases covered by the Rule on Summary Procedure. Second, since the ordinance in question partakes of a special penal statute Act No. 3326 is then applicable; hence, it is the filing in the proper court of the complaint or information which suspends the running of the period of prescription. In Zaldivia, this Court categorically interpreted Section 9 of the Rule on Summary Procedure to mean that "the running of the prescriptive period shall be halted on the date the case is actually filed in court and not on any date before that," which is in consonance with Section 2 of Act No. 3326. What is then left to be determined is whether the filing of the private respondent's complaint for grave oral defamation with the Office of the Ombudsman-Visayas is equivalent to filing the complaint in the prosecutor's office such that it interrupted the prescriptive period for grave oral defamation. Sections 12 and 13(1), Article XI of the Constitution provide: SEC. 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the

Government, or any subdivision or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof. SEC. 13. The Office of the Ombudsman shall have the following powers, functions, and duties: 1. Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.

Corollarily, Sections 13, 15(1), and 16 of R.A. No. 6770, otherwise known as The Ombudsman Act of 1989, which Congress enacted pursuant to paragraph 8viii[26] of the aforementioned Section 13, Article XI of the Constitution, provide as follows: SEC. 13. Mandate. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against officers or employees of the Government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and enforce their administrative, civil and criminal liability in every case where the evidence warrants in order to promote efficient service by the Government to the people. xxx xxx xxx

SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the following powers, functions and duties: 1. Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage from any investigatory agency of the Government, the investigation of such cases.

SEC. 16. Applicability. The provisions of this Act shall apply to all kinds of malfeasance, misfeasance, and nonfeasance that have been committed by any officer or employee as mentioned in Section 13 hereof, during his tenure in office. Needless to state, these broad constitutional and statutory provisions vest upon the Ombudsman and his Deputies the power to initiate or conduct preliminary investigations in criminal cases filed against public officers or employees, including government-owned or controlled corporations. Thus, in Deloso vs. Domingo,viii[27] this Court held: As protector of the people, the office of the Ombudsman has the power, function and duty "to act promptly on complaints filed in any form or manner against public officials" (Sec. 12) and to "investigate x x x any act or omission of any public official x x x when such act or omission appears to be illegal, unjust, improper or inefficient." (Sec. 13[1]) The Ombudsman is also empowered to "direct the officer concerned," in this case the Special

Prosecutor, "to take appropriate action against a public official x x x and to recommend his prosecution" (Sec. 13[3]). The clause "any [illegal] act or omission of any public official" is broad enough to embrace any crime committed by a public official. The law does not qualify the nature of the illegal act or omission of the public official or employee that the Ombudsman may investigate. It does not require that the act or omission be related to or be connected with or arise from, the performance of official duty. Since the law does not distinguish, neither should we. It must, however, be stressed that the authority of the Ombudsman to investigate any illegal act or omission of any public officer is not an exclusive authority; rather, it is a "shared or concurrent authority in respect of the offense charged."viii[28] A public officer, as distinguished from a government "employee," is a person whose duties involve the exercise of discretion in the performance of the functions of government.viii[29] The petitioner, being an Education Supervisor II of the Regional Office of Region VII of the DECS, is a public officer. The Ombudsman-Visayas then has authority to conduct preliminary investigation of the private respondent's complaint against the petitioner for grave oral defamation. Undoubtedly, the rationale of the first Olarte case, reiterated as the controlling doctrine in the second Olarte case, which was broadened in Francisco and reiterated in Calderon-Bargas, must apply to complaints filed with the Office of the Ombudsman against public officers and employees for purposes of preliminary investigation. Accordingly, the filing of the private respondent's complaint for grave oral defamation against the petitioner with the Ombudsman-Visayas tolled the running of the period of prescription of the said offense. Since the complaint was filed on 13 October 1993, or barely twenty days from the commission of the crime charged, the filing then of the information on 28 March 1994 was very well within the six-month prescriptive period. WHEREFORE, the instant petition is DISMISSED for want of merit. No pronouncement as to costs. SO ORDERED.

Republic SUPREME Manila THIRD DIVISION G.R. No. 149472

of

the

Philippines COURT

October 15, 2002

JORGE SALAZAR, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION PUNO, J.:

petitioner,

In an information dated January 21, 1987, petitioner Jorge Salazar was charged with estafa under Article 315 paragraph 1(b) of the Revised Penal Code. The information reads: "That on or about the 10th date of January 1986 in the Municipality of Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being the Vice President and Treasurer of Aurora/Uni-Group, Inc., received from Olivier Philippines and Skiva International, Inc. as represented by Teresita M. Tujan the amount of $41,300.00 for the sole purpose of meeting the cost of textile and labor in the manufacture of seven hundred dozen stretch twill jeans which he (accused) is duty bound to deliver to said complainant, and the accused once in possession of the same, far from complying from his obligation, with unfaithfulness and abuse of confidence and to defraud said complainant, did, then and there willfully and unlawfully and feloniously misappropriate, misapply and convert the same for his own personal use and benefit despite repeated demands to return the said amount, failed and refused and still fails and refuses to do so, to the damage and prejudice of said complainant, in the aforementioned amount of $41,300.00 or its equivalent in Philippine currency. Contrary to law."1 On arraignment, petitioner pleaded "not guilty" to the charge. It appears that Skiva International, Inc. ("Skiva") is a New York-based corporation which imports clothes from the Philippines through its buying agent, Olivier (Philippines) Inc. ("Olivier"). Aurora Manufacturing & Development Corporation ("Aurora") and Uni-Group Inc. ("Uni-Group") are domestic corporations which supply finished clothes to Skiva. Mr. Werner Lettmayr is the President of both Aurora and Uni-Group while the petitioner, Jorge Salazar, is the Vice-President and Treasurer of Uni-Group and a consultant of Aurora. Skiva, through its buying agent, Olivier, has been purchasing finished clothes from Aurora and Uni-Group. When an order is procured for the delivery of clothes, Olivier, issues to the local supplier, Aurora/Uni-Group, a "Purchase Contract" and Olivier issues to Skiva a "Sales Contract". In these transactions, payment is usually made by way of a letter of credit wherein the supplier is paid only upon the presentation of the proper shipping documents to the designated bank.2 In December 1985, Skiva informed Olivier that it needs ladies jeans to be delivered sometime in January 1986. Olivier, in turn, through its Officer-in-Charge, Ms. Teresita Tujan, contacted Aurora and Uni-Group to supply the jeans. 3 Thus, a Purchase Contract dated December 18, 1985 was issued by Olivier to Uni-Group wherein Uni-Group was to supply 700 dozens of three (3) different designs of "Ladies Basic 5 Pockets Stretch Twill Jeans" payable by means of a letter of credit at sight. 4 The Purchase Contract was confirmed by Mr. Lettmayr on December 30, 1985 .5 A Sales Contract was also issued by

Olivier to Skiva containing the same terms and conditions as the Purchase Contract and was confirmed by Mr. Jack Chehebar of Skiva.6 On January 7, 1986, the parties agreed that Skiva will advance to Aurora/Uni-Group the amount of US$41,300.00 (then equivalent to P850,370.00 at the exchange rate of P20.59 to US$1.00) as Aurora/Uni-Group did not have sufficient funds to secure raw materials to manufacture the jeans.7 It was also agreed that the amount advanced by Skiva represents advance payment of its order of 700 dozens of ladies jeans. 8 Skiva then issued a check in the said amount payable to Uni-Group. 9 However, due to the length of time needed for the check to be cleared, the parties made arrangements to remit the funds instead by way of telegraphic transfer. 10 Thus, the check issued by Skiva was returned by Mr. Lettmayr 11 and as agreed, the funds were remitted by Skiva from its bank in New York, the Israel Discount Bank, to the joint account of Mr. and Mrs. Jorge Salazar and Mr. and Mrs. Werner Lettmayr at Citibank N.A.12 On January 16, 1986, petitioner, who had possession and control of the passbook of the said joint account, withdrew the amount of US$21,675.21 13 and on January 22, 1986, petitioner withdrew the amount of US$20,000.00.14 The prosecution also presented evidence that subsequent to said withdrawals, the amounts of US$71.70 and US$63.99 were deducted from the joint account as telegraphic transfer fee and commission for the remittance of the funds to another account.15 In the meantime, Ms. Tujan contacted Aurora/Uni-Group to follow up on the production of the jeans. She learned that only 3,000 meters out of the 10,000 meters of Litton fabrics required for the order were purchased from Litton Mills by the petitioner.16 3,000 meters of Litton fabrics are enough to produce only 200 dozens of ladies jeans - an amount insufficient to satisfy the order of Skiva of 700 dozens of ladies twill jeans. 17 Upon inquiry with Mr. Lettmayr, the latter advised Ms. Tujan that the query be directed to petitioner as petitioner is in charge of securing the materials. 18 However, Ms. Tujan could not locate the petitioner.19 Consequently, in a letter dated March 13, 1986, demand was made upon Aurora/Uni-Group through its President, Mr. Lettmayr, to return the money advanced in the amount of US$41,300.00.20 For failure of Aurora/Uni-Group to deliver the ladies jeans or to account for the US$41,300.00 despite demand, Skiva, through its local agent represented by Ms. Tujan, filed a criminal complaint for estafa against Mr. Lettmayr and petitioner. After preliminary investigation, the Public Prosecutor dismissed the complaint against Mr. Lettmayr and an information was filed against petitioner.21 After trial, the lower court convicted herein petitioner of estafa under Article 315 paragraph 1 (b) of the Revised Penal Code, sentencing him to suffer the indeterminate penalty of imprisonment of eight (8) years and one (1) day of prision mayor as the minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as the maximum and to pay Uni-Group and Aurora the amount of P595,259.00. 22 On March 13, 1997, the lower court denied petitioners Motion for Reconsideration. 23 On appeal, the Court of Appeals affirmed in toto the decision of the trial court and denied petitioners Motion for Reconsideration.24 Aggrieved by the aforementioned rulings, petitioner files the instant petition for review.

The petition is bereft of merit. The following are the elements of estafa under Article 315 paragraph 1 (b) of the Revised Penal Code: a) that money, goods or other personal property is received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return the same; b) that there be misappropriation or conversion of such money or property by the offender; or denial on his part of such receipt; c) that such misappropriation or conversion or denial is to the prejudice of another; and d) there is demand made by the offended party to the offender.25 We agree with the trial courts finding that the contract between Skiva and Aurora/UniGroup was one of sale.26 Thus, upon remittance by Skiva of its advance payment in the amount of US$41,300.00, ownership thereof was transferred to Aurora/Uni-Group and Aurora/Uni-Group had no obligation to account or deliver the money to Skiva, its only obligation under the contract of sale being to deliver the 700 dozens of ladies jeans. However, petitioner, as an employee of Aurora/Uni-Group who was aware of the specific purpose of the remittance, upon receipt of the amount, had the obligation to account for the proceeds thereof to Aurora/Uni-Group. The records establish that: 1) the amount of US$41,300.00 was remitted by telegraphic transfer to the joint account of the petitioner and his wife and Mr. and Mrs. Werner Lettmayr;27 2) the said amount was remitted as advance payment by Skiva for the jeans it ordered;28 and 3) the amount of US$21,675.21 was withdrawn by petitioner on January 16, 1986 and the amount of US$20,000.00 was withdrawn by petitioner on January 22, 1986. 29 In fact, petitioner himself admits having withdrawn from the joint account on two occasions after the remittance was made.30 Petitioner further admits having made such withdrawal for the purpose of purchasing materials to be used for the jeans ordered by Skiva and a portion thereof to be given to Aurora.31 Thus, upon withdrawal by petitioner of the amounts advanced by Skiva, petitioner received the same in trust with an obligation to return the funds or account for the proceeds thereof. With respect to the element of conversion or misappropriation of the amount received, petitioner claims that a portion of the amount was used to purchase 3,000 meters of Litton fabrics and the balance was returned to Aurora.32 However, upon cross-examination, petitioner was unable to recall the amount paid for the purchase of the fabrics or the amount given to Aurora nor was petitioner able to identify whether payment for the purchase of fabric or the return of funds to Aurora was made in cash or in check. 33 In fact, except for his bare testimony, petitioner failed to present evidence to support his defense that payment for the purchase of fabrics had been made or that the balance of the amount received by petitioner was given to Aurora. The only reason why the Court is inclined to believe that 3,000 meters of Litton fabrics were purchased for the manufacture of the jeans is because the witness for the prosecution, Ms. Tujan, independently verified the purchase of the said materials from Litton Mills.34 To support petitioners claim that the remainder of the amount withdrawn was returned to Aurora, petitioner presents a letter dated October 15, 1986 from the Philippine Veterans Investment Development Corporation (PHIVIDEC) addressed to Mr. Werner Lettmayr, President of Aurora, regarding the financial audit of Aurora, wherein the amount of P850,780.00 is indicated as an amount "due to Uni-Group."35 Atty. Cesar Singson, witness for the defense, testified that the amount of P850,780.00 indicated in the said letter

represents the peso equivalent of the advance payment of US$41,300.00 made by Skiva to Uni-Group.36 We agree with the trial court that the probative value of the said letter is nil. The trial court correctly ruled: "The court doubts the probative value of the contents of [the letter] because the person who testified thereon, a certain Atty. Cesar Singson, was not the one who prepared the document. He was only one [of] those who was furnished a copy thereof. Moreover, when said piece of evidence was presented, there were inconsistencies in the testimony of the [petitioner] as to how he was able to procure said documents. In a hearing he testified that he personally procured said letter from the records of PHIVIDEC and the person who certified said copy signed the same in his presence. On cross examination, he testified that he did not personally obtain said letter and he was not there when the person who authenticated said letter signed it and that it was only given to him by his former counsel. This is further muddled when Atty. Singson testified that he was the one who authenticated said document on December 7, 1987 from his copy upon the request of the accused. Atty. Singson has already severed his ties with PHIVIDEC on the latter part of the year 1986. This means that Atty. Singson was no longer connected with PHIVIDEC when he authenticated said document based on his copy which implies that the document was not obtained from the records of PHIVIDEC."37 Further, even assuming that the letter may be given credence, we are unable to see any indication that the amount of P850,780.00 or at least a portion thereof (assuming that the said amount represents the advance payment made by Skiva) has been received by Aurora and/or Uni-Group from petitioner. At most, what said letter indicates is that Aurora acknowledges liability to Uni-Group in the said amount or that said amount has been received by Uni-Group from Skiva as advance payment which Uni-Group may have, in turn, assigned to Aurora. The glaring fact remains that nowhere can it be seen from the said letter that there was actual receipt by Aurora from petitioner of the amount indicated therein, or at least a portion thereof, after deduction of the cost of the materials purchased to manufacture the jeans ordered. Moreover, the prosecution was able to establish that upon withdrawal of the said amounts, petitioner caused the telegraphic transfer of the amount to another account prior to petitioners receipt of the amount in pesos. 38 In fact, upon being confronted by the prosecution with Exhibits "R" and "T" which are account debit forms showing that certain amounts were deducted by Citibank N.A. from the joint account as telegraphic transfer fee for the amounts withdrawn by petitioner, petitioner admitted that upon withdrawal, "the dollars was converted by the bank, remitted abroad, and given to me in pesos." 39 The act committed by petitioner of remitting the funds abroad constitutes an act of conversion or misappropriation. This Court has previously held that even a temporary disturbance of property rights constitutes misappropriation.40 The words "convert" and "misappropriate" as used in Article 315 paragraph 1 (b) of the Revised Penal Code, connote an act of using or disposing of anothers property as if it were ones own, or of devoting it to a purpose or use different from that agreed upon. To "misappropriate" a thing of value for ones own use includes, not only conversion to ones personal advantage but also every attempt to dispose of the property of another without right.41 Thus, when petitioner caused the remittance of the amount withdrawn to another account, such act constituted conversion or misappropriation or unauthorized disposition of the property, contrary to the purpose for which the property was devoted.

Petitioner also claims that the third element of estafa is not present as the party prejudiced, in accordance with the findings of the trial court and the Court of Appeals, is Skiva, when petitioner had no obligation to account to Skiva the proceeds of the amount withdrawn. Petitioner argues that consistent with the ruling of the lower court that Aurora is the owner of the sum remitted as advance payment, petitioner had the obligation to account for the proceeds thereof to Aurora and not to Skiva. 42 Thus, petitioner maintains that a conviction for estafa will not hold as no damage to Aurora was alleged in the information nor did the prosecution present any proof of damage to Aurora. We are not persuaded. As held in the case of First Producers Holdings Corporation v. Co, 43 in estafa, the person prejudiced or the immediate victim of the fraud need not be the owner of the goods misappropriated. Thus, Article 315 of the Revised Penal Code provides that "any person who shall defraud another by any means mentioned [in Article 315]" may be held liable for estafa. The use by the law of the word "another" instead of the word "owner" means that as an element of the offense, loss should have fallen upon someone other than the perpetrator of the crime. 44 Thus, the finding of the trial court that Skiva, the party prejudiced, is not the owner of the sum misappropriated will not nullify the conviction of the petitioner. Petitioner claims that the element of demand is absent as no demand was made by Skiva on petitioner. Petitioner argues that although demand was made by Skiva to Aurora/Uni-Group and/or Mr. Lettmayr, no demand was shown to have been made on petitioner himself. We hold that the element of demand was satisfied when demand was made upon Aurora/Uni-Group. To require Skiva to make a demand on petitioner himself would be superfluous and would serve no other additional purpose. We note that at the time when Ms. Tujan was following up on the delivery of the jeans, except for the advice of Mr. Lettmayr to direct her queries to petitioner who was in charge of procuring the materials for the jeans, Ms. Tujan could not have known that petitioner may be primarily responsible for the non-delivery of the jeans. As far as Skiva/Olivier was concerned, it was the obligation of Aurora/Uni-Group to deliver the jeans, which at the time of demand, was not complied with. Thus, Skiva/Olivier acted appropriately when it demanded from Aurora/Uni-Group the return of the amount advanced. To require that demand should have been made by Skiva/Olivier upon petitioner himself to uphold the conviction of the trial court is to sustain a blind application of the law. In the case of United States v. Ramirez,45 this Court held: "The consummation of the crime of estafa does not depend on the fact that a request for the return of the money is first made and refused in order that the author of the crime should comply with the obligation to return the sum misapplied. The appropriation or conversion of money received to the prejudice of the owner thereof are the sole essential facts which constitute the crime of estafa, and thereupon the author thereof incurs the penalty imposed by the Penal Code." Further, in Tubbs v. People and Court of Appeals46 this Court ruled that "the law does not require a demand as a condition precedent to the crime of embezzlement. It so happens only that failure to account, upon demand for funds and property held in trust, is circumstantial evidence of misappropriation."

In Benito Sy y Ong v. People and Court of Appeals,47 we also held that in a prosecution for estafa, demand is not necessary when there is evidence of misappropriation. Petitioner likewise maintains that Skiva has no authority to institute the present action as estafa was not committed against Skiva but against Aurora/Uni-Group on the basis of the finding that the transaction between Skiva and Aurora/Uni-Group was one of sale. Thus, petitioner argues that pursuant to Section 3, Rule 110 of the Rules on Criminal Procedure,48 the complaint should not have been instituted by Skiva as it is not the "offended party" contemplated by the Rules and petitioner had no obligation to account to Skiva the proceeds of the amount withdrawn from the joint account.49 The "complaint" referred to in Rule 110 contemplates one that is filed in court to commence a criminal action in those cases where a complaint of the offended party is required by law, instead of an information which is generally filed by a fiscal.50 It is not necessary that the proper "offended party" file a complaint for purposes of preliminary investigation by the fiscal. The rule is that unless the offense subject of the complaint is one that cannot be prosecuted de oficio, any competent person may file a complaint for preliminary investigation.51 Thus, as a general rule, a criminal action is commenced by a complaint or information, both of which are filed in court. If a complaint is filed directly in court, the same must be filed by the offended party and in case of an information, the same must be filed by the fiscal. However, a "complaint" filed with the fiscal prior to a judicial action may be filed by any person.52 Thus, in the case at bar, the complaint was validly filed by Skiva despite the finding of the lower court that petitioner had no obligation to account to Skiva. WHEREFORE, the instant petition is DENIED and the appealed judgment of the court a quo finding petitioner guilty beyond reasonable doubt of the crime of Estafa under Article 315 paragraph 1 (b) of the Revised Penal Code is AFFIRMED. Costs against appellant. SO ORDERED. Panganiban, Sandoval-Gutierrez, Corona, and Carpio-Morales, JJ., concur.