Will the writ of certiorari issue to reverse the dismissal of a complaint by the Investigating Prosecutor, which dismissal was upheld by the Undersecretary of Justice? Corollarily, is mandamus available to compel said prosecutor to file an information against private respondents?

These questions were answered by this Court in resolving the instant petition for certiorari and mandamus under Rule 65 of the Rules of Court seeking to set aside the Order^[1] dated October 18, 1994 issued by respondent Undersecretary of Justice, denying the appeal of petitioner and upholding the Resolution^[2] of respondent Prosecutor dismissing the criminal complaint docketed as I.S. No. 91-2012 for "Violation of P.D. 1612 (Anti-Fencing Law of 1979)" against private respondents.

After receipt of and judicious deliberation on the Comments by respondents and the Consolidated Reply, the Court considered the case submitted for resolution without need of memoranda by the parties.
The 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" six million five hundred thousand pesos (P6,500,000.00).^[3] The pilfered materials were diverted and sold to hardware stores in Cubao, Quezon City, identified as the MC Industrial Sales and the Seato Trading Company, Inc., owned by private respondents, Ching and Spouses Say, respectively.^[4]

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

In the afternoon of August 28, 1991, pursuant to search warrants^[5] issued by Judge Felix M. de Guzman, Branch 99, Regional Trial Court, Quezon City, a search was conducted in the premises of Eduardo Ching at 15-A and C and No. 22 Pittsburgh St., Cubao, and in the premises of the San Juan Enterprises/Seato Trading Inc. (owned by Anthony and Cecilia Say) located at No. 110 20th Avenue, Cubao, Quezon City. Seized from Ching were three (3) pieces of phenolic plywood, and from the Spouses Say, six hundred fifteen (615) pieces of such plywood.^[6] The seized items had an estimated aggregate value of one million pesos (P1,000,000.00).^[7] These items were later identified by petitioner corporation as among those stolen/pilfered from its warehouse in Cainta, Rizal.^[8]

After investigation, the NBI filed on August 29, 1991 a complaint with the Quezon Prosecutor's Office recommending the prosecution of private respondent Eduardo L. Ching for violation of P.D. 1612, otherwise known as the Anti-Fencing Law. On September 25, 1991, the NBI filed another complaint with the same office recommending the prosecution of private respondents Anthony Say and Cecilia Say for the same violation.^[9] Both complaints were later consolidated and assigned to public respondent Asst. City Prosecutor Semana for preliminary investigation. The NBI also recommended the prosecution of several employees of the petitioner for qualified theft.^[10]

Upon evaluating the affidavits of witnesses, counter-affidavits and reply affidavits, the investigating prosecutor in his Resolution^[11] 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 (sic), 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. They never had any suspicious (sic), even the slightest suspicion, that those marine plywoods were allegedly the subject of thievery since they were buying from a legitimate business enterprises (sic) engaged in the selling of construction materials. They never suspected and they do (sic) not have any reason to suspect because '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 purchases they made from the CHING'S (sic) thus making the transaction over and abovementioned (sic) 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. The sales agents in the persons of Ernesto Yabut and a certain Reyes were able to produce sales invoice of their firm in all those transactions and that those goods appeared new and unsold. The misrepresentation of Yabut coupled by the circumstances of issuing legal and valid sales invoice of Paramount Industrial which appears to be a legitimate establishment engaged in the selling of construction materials and the condition of the goods that were sold being new and unused leaves no reason for Ching to became (sic) suspicious that those marine plywoods were stolen."

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.^[12] Petitioner filed a motion for reconsideration^[13] which was denied in another approved Resolution dated August 17, 1994.^[14]

On September 28, 1994, petitioner filed a petition for review with the Department of Justice.^[15] 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 on October 18, 1994 by respondent Undersecretary Esguerra.^[16] Hence, this petition.
The Issues
Petitioner now charges the public respondent Undersecretary of Justice with having "seriously erred and committed grave abuse of discretion" in --

"I. x x x upholding the resolution of Assistant City Prosecutor Prospero B. Semana, in dismissing the case against the private respondents (and)

II. x x x dismissing the case for failure of the petitioner to comply with the Department Order."

In fine, the only issues raised are 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.
The Court's Ruling
Certiorari Does Not Lie
Petitioner contends that public respondents "committed grave abuse of discretion x x x in refusing to apply the rule in preliminary investigation" that only "probable cause" and not "sufficiency of evidence to establish guilt" is necessary "for the filing of information to the court by the investigating officer".^[17] Such evidence "which established the existence of facts and circumstances as would excite the belief in a reasonable mind as acting on the facts within the knowledge of the prosecutor that (private respondents) are guilty of the crime for which they are being prosecuted"^[18] are to be found, petitioner insists, in the sworn statements of the employees of petitioner who were investigated by the NBI, namely: Edmund Corate, Cayetano Rodriguez, Augusto Datu, Clemente Revilla, Reynaldo Reyes, and Ernesto Yabut, and in the statements of private respondents.

The Solicitor General disagrees, arguing in his Comment^[19] that no clear or concrete proof was submitted to show that private respondents were aware that the pieces of phenolic plywood they bought were the objects of robbery or theft, an essential element in the crime of fencing. Thus, no grave abuse of discretion was attributable to the public respondents. On the other hand, respondents Spouses Say claim that there was no evidence linking them to the crime and the "affidavits of the witnesses failed to mention their names or implicate them in the alleged illegal transaction."

Petitioner however retorted that, contrary to the contention of the Solicitor General and private respondents, 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.

Petitioner's position is clearly untenable and cannot be sustained. In Dizon-Pamintuan vs. People,^[20] we discussed the elements of the crime of fencing:

"(1) A crime of robbery or theft has been committed;

(2) The accused, who is not a principal or accomplice in the commission of the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells, or disposes or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the said crime;

(3) The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and

(4) There is, on the part of accused, intent to gain for himself or for another."

In the instant case, the first and second elements were duly established. Qualified theft had been committed. Quantities of phenolic plywood were stolen and were discovered in the premises of private respondents. The question is whether the third element exists. Did private respondents know or should they have known that the phenolic plywood were the subjects or proceeds of crime?

Dizon-Pamintuan^[21] gives us the guidelines:

"One is deemed to know a particular fact if he has the cognizance, consciousness or awareness thereof, or is aware of the existence of something, or has the acquaintance with facts, or if he has something within the mind's grasp with certitude and clarity. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence unless he actually believes that it does not exists. On the other hand, the words "should know" denote the fact that a person of reasonable prudence and intelligence would ascertain the fact in performance of his duty to another or would govern his conduct upon assumption that such fact exists. Knowledge refers to a mental state of awareness about a fact. Since the court cannot penetrate the mind of an accused and state with certainty what is contained therein, it must determine such knowledge with care from the overt acts of that person. And given two equally plausible states of cognition or mental awareness, the court should choose the one which sustains the constitutional presumption of innocence.

Since Section 5 of P.D. 1612 expressly provides that '[m]ere 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. x x x."

In the aforementioned case, the accused was unable to rebut the prima facie presumption by failing to present her supplier/dealer, who allegedly was the source of the stolen jewelry; neither did she establish that the latter was a licensed supplier/dealer of jewelry.^[22]

This is not so in the case at bar. 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.^[23] 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.^[24] 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. Admittedly, there is no jurisprudence to the effect that a receipt is a sufficient defense against charges of fencing. But logically, and for all practical purposes, 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. Grave abuse of discretion has been defined thus:

"By 'grave abuse of discretion' is meant, such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be grave as where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility and must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined by or to act at all in contemplation of law. x x x"^[25]

At the risk of being repetitious, we reiterate that public respondents had sufficient and substantial basis for the dismissal of the complaint as against private respondents.

Mandamus Is Improper
The Solicitor General posits that "the institution of a criminal action depends upon the sound discretion of the fiscal", who has the 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.^[26] The Solicitor General further contends that since the institution of a criminal action involves the exercise of sound discretion, it is not a ministerial duty which can be compelled by mandamus.

Petitioner in its Reply persists and, citing various authorities,^[27] argues that "in extreme situations, generally in criminal cases, mandamus lies to compel the performance by the fiscal of what ostensibly are discretionary functions, where, by reason of grave abuse of discretion on his part, his actuations are tantamount to a willful refusal to perform a duty specifically required by law", and further, that the writ of mandamus may control discretion "in cases of gross abuse of discretion, manifest injustice, or palpable excess of authority."^[28] In brief, petitioner holds to the position that "[w]hen the prosecutor, who is performing discretionary functions abuses his discretion by refusing to file an information against the persons who appear to be responsible despite sufficient evidence, such refusal amounts to a deliberate refusal to perform a duty enjoined by law x x x" which rendered such prosecutor subject to the writ of mandamus.^[29]

Reviewing the cases cited by petitioner, we find that its contentions do not merit serious consideration.

Mandamus was allowed in People vs. Orais,^[30] not to compel the prosecutor to exercise his discretion in a particular manner, but to compel him to file an Information because he refused to do so in spite of the existence of prima facie evidence of guilt. There, the Court held:

"x x x. But he may as we already have said, resort to the extraordinary remedy of mandamus to compel the fiscal to proceed with the case and the judge, who ordered the dismissal, to restore it, if the evidence in the preliminary investigation and that submitted to the fiscal establishes prima facie the guilt of the accused."

In Antiquera vs. Baluyot, supra, mandamus issued, not with respect to the determination of probable cause, but rather on account of the refusal of the then Secretary of the Interior to grant retirement gratuity to the petitioner in spite of the plain and only requirement of law that in order to be entitled thereto, the employee be separated from service by reason of reorganization.

The case of Bernabe vs. Bolinas, Jr., allowed mandamus to compel the fiscal to amend the offense charged in the Information from homicide to murder because there was treachery based on the testimonies of the witnesses.

In De Castro, Jr. vs. Castañeda, the issue was whether the fiscal could be compelled by mandamus to include all the accused "who appear responsible for the commission of an offense x x x in the information x x x" as there was sufficient evidence of their guilt. This Court ruled in the affirmative.

In the recent case of Roberts, et al. vs. Court of Appeals, et al.,^[31] this Court held that in criminal prosecutions, the determination of probable cause may either be an executive or a judicial prerogative:

"x x x The determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation proper -- whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he should be subjected to the expense, rigors and embarrassment of trial -- is the function of the Prosecutor.

.......

We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the determination of a sufficient ground for the filing of the information or it is an investigation for the determination of a probable cause for the issuance of a warrant of arrest. The first kind of preliminary investigation is executive in nature. It is part of the prosecution's job. The second kind of preliminary investigation which is more properly called preliminary examination is judicial in nature and is lodged with the judge . . . ."

The preliminary investigation in the case at bar falls under the first kind. Thus, the decision whether or not to dismiss the complaint against private respondents is necessarily dependent on the sound discretion of the prosecuting fiscal and, ultimately, that of the Secretary or Undersecretary (acting for the Secretary) of Justice.

In Lim vs. Court of Appeals,^[32] we reiterated the rule of long standing that the matter of deciding who to prosecute is a prerogative of the prosecuting fiscal:

"Further to the argument concerning the non-inclusion of the prosecution witnesses as additional accused in the case of violation of the Anti-Fencing Law, it may be observed that this bare assertion overlooks the fact that it is the fiscal, as a quasi-judicial officer, who assumes full discretion and control of the case and this faculty may not be interfered with, for a prosecutor may not be compelled by mandamus to file a criminal information where he is convinced that he does not have the necessary evidence against an individual. x x x."

And as for this Court, the rule is settled that our duty in an appropriate case is confined to determining whether the executive or judicial determination, as the case may be, of probable cause was done without or in excess of jurisdiction or with grave abuse of discretion.^[33] Thus, although it is entirely possible that the investigating fiscal may erroneously exercise the discretion lodged in him by law, this does not render his act amenable to correction and annulment by the extraordinary remedy of certiorari, absent any showing of grave abuse of discretion amounting to excess of jurisdiction.^[34]

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.

In Quiso vs. Sandiganbayan,^[35] this Court pointed out that:

"x x x [A] fiscal by the nature of his office, is under no compulsion to file a particular criminal information where he is not convinced that he has evidence to support the allegations thereof. Although this power and prerogative x x x is not absolute and subject to judicial review, it would be embarrassing for the prosecuting attorney to be compelled to prosecute a case when he is in no position to do so, because in his opinion he does not have the necessary evidence to secure a conviction, or he is not convinced of the merits of the case."

The aforecited rule applies in this case. 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, corollarily, there is also no ground to issue a writ of mandamus.

It should be added that preliminary investigation is necessary to protect the innocent from the rigors, embarrassment, anxiety and expense of a criminal prosecution, the prosecutor from filing cases which he cannot prove, and the courts from being overly burdened with unnecessary caseloads.

WHEREFORE, premises considered, the instant Petition is hereby DISMISSED for lack of merit.

SO ORDERED.

Narvasa, C.J., (Chairman), Davide, Jr., Melo, and Francisco, JJ., concur.

---

^[1] Rollo, p. 32.

^[2] Rollo, pp. 27-28.

^[3] Rollo, p. 3.

^[4] Rollo, p. 4.

^[5] Rollo, pp. 125 (g) and 126.

^[6] Rollo, pp. 127-128.

^[7] Rollo, p. 6.

^[8] Ibid.

^[9] Rollo, pp. 125 and 125(b).

^[10] Rollo, p. 125(d).

^[11] Dated August 10, 1992; Rollo, pp. 27-29.

^[12] Rollo, p. 29.

^[13] Rollo, p. 129.

^[14] Rollo, pp. 30-31.

^[15] Rollo, pp. 147-154.

^[16] Rollo, p. 32.

^[17] Rollo, p. 7.

^[18] Rollo, pp. 9-22.

^[19] Rollo, pp. 173-183.

^[20] 234 SCRA 63, 72 (July 11, 1994).

^[21] Id., pp. 73-74.

^[22] Id., p. 75.

^[23] Rollo, p. 181.

^[24] Rollo, pp. 123 and 181.

^[25] Planters Products, Inc. vs. Court of Appeals, 193 SCRA 563, 568-9 (February 6, 1991), citing Carson vs. Pantanosas, Jr., 180 SCRA 151, 155 (December 15, 1989).

^[26] Rollo, p. 179.

^[27] Inter alia, People vs. Orais, 65 Phil. 744, 757 [1938], cited by Regalado, Remedial Law Compendium, 1989 ed., p. 464; Antiquera vs. Baluyot, 91 Phil. 214, 220 [1952].

^[28] Kant Kwong vs. PCGG, 156 SCRA 222, 232-233 (December 7, 1987).

^[29] Bernabe vs. Bolinas, Jr., 18 SCRA 812, 816 (November 29, 1966); De Castro vs. Castaneda, 1 SCRA 1131, 1135 (April 28, 1961); Regalado, supra, p. 188, citing Guiao vs. Figueroa, 50 O.G. 4828.

^[30] Supra, at p. 757.

^[31] G.R. No. 113930, March 5, 1996, on p. 32, citing People vs. Inting, 187 SCRA 788 (1990).

^[32] 222 SCRA 279, 286 (May 18, 1993).

^[33] Roberts, Jr., et al. vs. CA, et al., supra., at p. 32.

^[34] Bernabe, Jr. vs. Fiscal del Rosario, et al., G.R. No. L-83095 (July 19, 1988) (En Banc Minute Resolution).

^[35] 149 SCRA 108, 112 (April 6, 1987) citing Alberto vs. Dela Cruz, 98 SCRA 406 (June 30, 1980).