DIGEST/NORIZA JEAN DAGA/D.M. CONSUNJI, INC. vs. RAMON S. ESGUERRA, ET. AL

D.M. CONSUNJI, INC., petitioner,
vs.
RAMON S. ESGUERRA, in his capacity as Undersecretary of the Department of Justice, PROSPERO B. SEMANA, in his capacity as the Investigating Asst. City Prosecutor of Quezon City, EDUARDO L. CHING, and Spouses ANTHONY and CECILIA C. SAY, respondents.

G.R. No. 118590 July 30, 1996

Facts:

            As a result of conducting an inventory, petitioner discovered that there was systematic pilferage of company properties by stock clerks and drivers for almost a year. Losses occasioned thereby amounted to "not less than" P6,500,000.00.  The pilfered materials were diverted and sold to hardware stores, identified as the MC Industrial Sales and the Seato Trading Company, Inc., owned by private respondents Ching and Spouses Say, respectively.

Petitioner sought the assistance of the NBI to further investigate the pilferages in order for it to take the appropriate legal action against the persons responsible.

Pursuant to search warrants issued by The RTC, a search was conducted in the premises of Eduardo Ching and in the premises of the San Juan Enterprises/Seato Trading Inc. (owned by Anthony and Cecilia Say). The seized items had an estimated aggregate value of P1,000,000.00. These items were later identified by petitioner corporation as among those stolen/pilfered from its warehouse.

After investigation, the NBI filed a complainant with the Quezon City Prosecutor's Office recommending the prosecution of private respondent Eduardo L. Ching, Anthony Say and Cecilia Say for violation of P.D. 1612, otherwise known as the Anti-Fencing Law. The NBI also recommended the prosecution of several employees of the petitioner for qualified theft. 

Upon evaluating the affidavits of witnesses, counter-affidavits and reply affidavits, the investigating prosecutor in his Resolution recommended dismissal of the case against private respondents, reasoning in part that:

Fencing as defined by law is the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or should have known to him, to have been derived from the proceeds of the crime of robbery or theft.

When SEATO TRADING bought the said marine plywoods from EDUARDO CHING, there is no doubt that the Spouses SAY were buying legitimate goods. M.C. Industrial Sales owned and operated by the Spouses Ching, is duly registered and licensed establishment engaged in the selling of construction materials. Moreover, the SAYS were duly given the proper receipts/sales invoice for all the purchases they made from the CHING'S thus making the transaction over and abovementioned of what is legitimate.

The same is true in the case of the Spouses Ching. Ernesto Ching bought those plywoods on the representation of Ernesto Yabut and a certain Reyes that they are employees of Paramount Industrial. Eduardo Ching did not have any reason to suspect that what he was buying were the objects of theft because for all purchases he made, he was likewise issued the corresponding receipts/sales invoice.

On August 20, 1992, respondent Semana's recommendation was approved by First Assistant City Prosecutor Ramon M. Gerona, by authority of the Quezon City Prosecutor.  Petitioner filed a motion for reconsideration which was denied in another approved Resolution.

Petitioner filed a petition for review with the Department of Justice.  Finding no reversible error committed by the Investigating Prosecutor in its Resolution, and for failure of the petitioner to comply with certain formal requirements for such appeal, the same was denied by respondent Undersecretary Esguerra.  Hence, this petition.

 

Issue:

            Whether or not grave abuse of discretion was committed by the respondent Investigating Prosecutor in dismissing, and by the Undersecretary of Justice in upholding the dismissal of the anti-fencing case against private respondents, and if so, whether mandamus should issue to compel them to file the appropriate information against private respondents.

 

Ruling:

                Petitioner contends that mere possession by private respondents of the stolen phenolic plywood constituted prima facie evidence of fencing, according to Section 5 of P.D. 1612. Further, the sales invoices presented by respondent Spouses Say did not exculpate them because such invoices cannot overcome the presumption in Section 5 which provides that "mere possession of any good article, item, object or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing," it follows that the petitioner is presumed to have knowledge of the fact that the items found in her possession were the proceeds of robbery or theft. The presumption is reasonable for no other natural or logical inference can arise from the established fact of her possession of the proceeds of the crime of robbery or theft.

It is uncontested that private respondents presented sales receipts covering their purchases of the subject phenolic plywood. In respondent Ching's case, he alleges that he purchased the phenolic plywood from agents of Paramount Industrial which is a known hardware store in Caloocan City and that his purchases were covered by receipts. On the other hand, the Spouses Say likewise claim that they bought the plywood from MC Industrial Sales which is a registered business establishment licensed to sell construction materials and that their purchases too were covered by receipts. Thus, the prima facie presumption was successfully disputed. The logical inference follows that private respondents had no reason to suspect that said plywoods were the proceeds of qualified theft or any other crime.

Such receipt is proof — although disputable — that the transaction in question is above-board and legitimate. Absent other evidence, the presumption of innocence remains. Thus, grave abuse of discretion cannot be successfully imputed upon public respondents.

The Solicitor General posits that "the institution of a criminal action depends upon the sound discretion of the fiscal", who has a quasi-judicial discretion to determine whether or not a criminal case should be filed in court. He may dismiss the complaint in the first instance if in his judgment the acts or omissions complained of are not illegal, unjust, improper or sufficient. The Solicitor General further contends that since the institution of a criminal action involves the existence of sound discretion, it is not a ministerial duty which can be compelled by mandamus.

In this case, it is obvious that such a grave abuse of discretion is not present. Even if the Court can compel the fiscal to file the information against private respondents, no clear legal right has been shown, no sufficient evidence of guilt and no prima facie case has been presented by the petitioner.

The Court holds that the remedy of mandamus does not lie to compel public respondents to file an Information against private respondents. There being no showing of grave abuse of discretion on the part of public respondents which would warrant the overturning of their decision to dismiss the complaint against the private respondents, corollarilly, there is also no ground to issue a writ of mandamus.