Settled is the rule that the single act of issuing a bouncing check may give rise to two distinct criminal offenses: estafa and violation of Batas Pambansa Bilang 22 (BP 22).  The Rules of Court allow the offended party to intervene via a private prosecutor in each of these two penal proceedings.  However, the recovery of the single civil liability arising from the single act of issuing a bouncing check in either criminal case bars the recovery of the same civil liability in the other criminal action.  While the law allows two simultaneous civil remedies for the offended party, it authorizes recovery in only one.  In short, while two crimes arise from a single set of facts, only one civil liability attaches to it.


Before us is a Petition for Certiorari^[1] under Rule 65 of the Rules of Court, seeking to reverse the July 27, 2002 Order^[2] of the Regional Court (RTC) of Quezon City (Branch 104) in Criminal Case Nos. Q-01-106256 to Q-01-106259.  Also assailed is the August 16, 2002 Order^[3] of the RTC denying petitioner's Motion for Reconsideration.  The first assailed Order is quoted in full as follows:

"For consideration is the opposition of the accused, through counsel, to the formal entry of appearance of private prosecutor.

"Accused, through counsel, contends that the private prosecutor is barred from appearing before this Court as his appearance is limited to the civil aspect which must be presented and asserted in B.P. 22 cases pending before the Metropolitan Trial Court of Quezon City.

"The private prosecutor submitted comment stating that the offended party did not manifest within fifteen (15) days following the filing of the information that the civil liability arising from the crime has been or would be separately prosecuted and that she should therefore be required to pay the legal fees pursuant to Section 20 of Rule 141 of the Rules of Court, as amended.

"Considering that the prosecution under B.P. 22 is without prejudice to any liability for violation of any provision of the Revised Penal Code (BP 22, Sec. 5), the civil action for the recovery of the civil liability arising from the estafa cases pending before this Court is deemed instituted with the criminal action (Rule 111, Sec. 1 [a]). The offended party may thus intervene by counsel in the prosecution of the offense (Rule 110. Sec. 16).

"WHEREFORE, the appearance of a private prosecutor shall be allowed upon payment of the legal fees for these estafa cases pending before this Court pursuant to Section 1 of Rule 141 of the Rules of Court, as amended."^[4]

The undisputed facts are narrated by petitioner as follows:

"On 10 December 2001, the Honorable Assistant City Prosecutor Rossana S. Morales-Montojo of Quezon City Prosecutor's Office issued her Resolution in I.S. No. 01-15902, the dispositive portion of which reads as follows:

"Premises considered, there being PROBABLE CAUSE to charge respondent for ESTAFA under Article 315 paragraph 2(d) as amended by PD 818 and for Violation of Batas Pambansa Blg. 22, it is respectfully recommended that the attached Information be approved and filed in Court."

"As a consequence thereof, separate informations were separately filed against herein [p]etitioner before proper [c]ourts, for Estafa and [v]iolation of Batas Pambansa Blg. 22.

"Upon payment of the assessed and required docket fees by the [p]rivate [c]omplainant, the informations for [v]iolation of Batas Pambansa Blg. 22 against herein [p]etitioner were filed and raffled to the Metropolitan Trial Court of Quezon City, Branch 42, docketed as Criminal Cases Nos. 0108033 to 36.

"On the other hand, the informations for [e]stafa cases against herein [p]etitioner were likewise filed and raffled to the Regional Trial Court of Quezon City, Branch 104, docketed as Criminal Cases Nos. 01-106256 to 59.

"On 17 June 2002, petitioner through counsel filed in open court before the [p]ublic [r]espondent an 'Opposition to the Formal Entry of Appearance of the Private Prosecutor' dated 14 June 2002.

"The [p]ublic [r]espondent court during the said hearing noted the Formal Entry of Appearance of Atty. Felix R. Solomon as [p]rivate [p]rosecutor as well as the Opposition filed thereto by herein [p]etitioner.  x x x.

"As ordered by the Court, [p]rivate [c]omplainant through counsel filed her Comment to the Opposition of herein [p]etitioner.

"On 27 June 2002, the [p]ublic [r]espondent court issued the first assailed Order allowing the appearance of the [p]rivate [p]rosecutor in the above-entitled criminal cases upon payment of the legal fees pursuant to Section 1 of Rule 141 of the Rules of Court, as amended.

"On 31 July 2002, [a]ccused through counsel filed a Motion for Reconsideration dated 26 July 2002.

"On 16 August 2002, the [p]ublic [r]espondent court issued the second assailed Order denying the Motion for Reconsideration of herein [p]etitioner."^[5]

Noting petitioner's opposition to the private prosecutor's entry of appearance, the RTC held that the civil action for the recovery of civil liability arising from the offense charged is deemed instituted, unless the offended party (1) waives the civil action, (2) reserves the right to institute it separately, or (3) institutes the civil action prior to the criminal action.  Considering that the offended party had paid the corresponding filing fee for the estafa cases prior to the filing of the BP 22 cases with the Metropolitan Trial Court (MeTC), the RTC allowed the private prosecutor to appear and intervene in the proceedings.

Hence, this Petition.^[6]


Petitioner raises this sole issue for the Court's consideration:

"Whether or not a [p]rivate [p]rosecutor can be allowed to intervene and participate in the proceedings of the above-entitled [e]stafa cases for the purpose of prosecuting the attached civil liability arising from the issuance of the checks involved which is also subject mater of the pending B.P. 22 cases."^[7]

The Petition has no merit.


Petitioner theorizes that the civil action necessarily arising from the criminal case pending before the MTC for violation of BP 22 precludes the institution of the corresponding civil action in the criminal case for estafa now pending before the RTC.  She hinges her theory on the following provisions of Rules 110 and 111 of the Rules of Court:

"SECTION 16. Intervention of the offended party in criminal action. -- Where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule 111, the offended party may intervene by counsel in the prosecution of the offense."

"SECTION 1. Institution of criminal and civil actions. -- (a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action.

"The reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation.

"When the offended party seeks to enforce civil liability against the accused by way of moral, nominal, temperate, or exemplary damages without specifying the amount thereof in the complaint or information, the filing fees therefor shall constitute a first lien on the judgment awarding such damages.

x x x             x x x             x x x

"(b) The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the corresponding civil action. No reservation to file such civil action separately shall be allowed.

"Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay in full the filing fees based on the amount of the check involved, which shall be considered as the actual damages claimed. Where the complaint or information also seeks to recover liquidated, moral, nominal, temperate or exemplary damages, the offended party shall pay the filing fees based on the amounts alleged therein. If the amounts are not so alleged but any of these damages are subsequently awarded by the court, the filing fees based on the amount awarded shall constitute a first lien on the judgment.

"Where the civil action has been filed separately and trial thereof has not yet commenced, it may be consolidated with the criminal action upon application with the court trying the latter case. If the application is granted, the trial of both actions shall proceed in accordance with section 2 of this Rule governing consolidation of the civil and criminal actions."

Based on the foregoing rules, an offended party may intervene in the prosecution of a crime, except in the following instances: (1) when, from the nature of the crime and the law defining and punishing it, no civil liability arises in favor of a private offended party; and (2) when, from the nature of the offense, the offended parties are entitled to civil indemnity, but (a) they waive the right to institute a civil action, (b) expressly reserve the right to do so or (c) the suit has already been instituted.  In any of these instances, the private complainant's interest in the case disappears and criminal prosecution becomes the sole function of the public prosecutor.^[8]  None of these exceptions apply to the instant case.  Hence, the private prosecutor cannot be barred from intervening in the estafa suit.

True, each of the overt acts in these instances may give rise to two criminal liabilities -- one for estafa and another for violation of BP 22.  But every such act of issuing a bouncing check involves only one civil liability for the offended party, who has sustained only a single injury.^[9]  This is the import of Banal v. Tadeo,^[10] which we quote in part as follows:

"Generally, the basis of civil liability arising from crime is the fundamental postulate of our law that 'Every man criminally liable is also civilly liable' (Art. 100, The Revised Penal Code).  Underlying this legal principle is the traditional theory that when a person commits a crime he offends two entities namely (1) the society in which he lives in or the political entity called the State whose law he had violated; and (2) the individual member of that society whose person, right, honor, chastity or property was actually or directly injured or damaged by the same punishable act or omission.  However, this rather broad and general provision is among the most complex and controversial topics in criminal procedure.  It can be misleading in its implications especially where the same act or omission may be treated as a crime in one instance and as a tort in another or where the law allows a separate civil action to proceed independently of the course of the criminal prosecution with which it is intimately intertwined.  Many legal scholars treat as a misconception or fallacy the generally accepted notion that the civil liability actually arises from the crime when, in the ultimate analysis, it does not.  While an act or omission is felonious because it is punishable by law, it gives rise to civil liability not so much because it is a crime but because it caused damage to another.  Viewing things pragmatically, we can readily see that what gives rise to the civil liability is really the obligation and the moral duty of everyone to repair or make whole the damage caused to another by reason of his own act or omission, done intentionally or negligently, whether or not the same be punishable by law.  In other words, criminal liability will give rise to civil liability only if the same felonious act or omission results in damage or injury to another and is the direct and proximate cause thereof.  Damage or injury to another is evidently the foundation of the civil action.  Such is not the case in criminal actions for, to be criminally liable, it is enough that the act or omission complained of is punishable, regardless of whether or not it also causes material damage to another.  (See Sangco, Philippine Law on Torts and Damages, 1978, Revised Edition, pp. 246-247)."

Thus, the possible single civil liability arising from the act of issuing a bouncing check can be the subject of both civil actions deemed instituted with the estafa case and the BP 22 violation prosecution.  In the crimes of both estafa and violation of BP 22, Rule 111 of the Rules of Court expressly allows, even automatically in the present case, the institution of a civil action without need of election by the offended party.  As both remedies are simultaneously available to this party, there can be no forum shopping.^[11]

Hence, this Court cannot agree with what petitioner ultimately espouses.  At the present stage, no judgment on the civil liability has  been rendered in either criminal case.  There is as yet no call for the offended party to elect remedies and, after choosing one of them, be considered barred from others available to her.

Election of Remedies

Petitioner is actually raising the doctrine of election of remedies.  "In its broad sense, election of remedies refers to the choice by a party to an action of one of two or more coexisting remedial rights, where several such rights arise out of the same facts, but the term has been generally limited to a choice by a party between inconsistent remedial rights, the assertion of one being necessarily repugnant to, or a repudiation of, the other."^[12]  In its more restricted and technical sense, the election of remedies is the adoption of one of two or more coexisting ones, with the effect of precluding a resort to the others.^[13]

The Court further elucidates in Mellon Bank v. Magsino^[14] as follows:

"As a technical rule of procedure, the purpose of the doctrine of election of remedies is not to prevent recourse to any remedy, but to prevent double redress for a single wrong.^[15]  It is regarded as an application of the law of estoppel, upon the theory that a party cannot, in the assertion of his right occupy inconsistent positions which form the basis of his respective remedies.  However, when a certain state of facts under the law entitles a party to alternative remedies, both founded upon the identical state of facts, these remedies are not considered inconsistent remedies.  In such case, the invocation of one remedy is not an election which will bar the other, unless the suit upon the remedy first invoked shall reach the stage of final adjudication or unless by the invocation of the remedy first sought to be enforced, the plaintiff shall have gained an advantage thereby or caused detriment or change of situation to the other.^[16]  It must be pointed out that ordinarily, election of remedies is not made until the judicial proceedings has gone to judgment on the merits.^[17]

"Consonant with these rulings, this Court, through Justice J.B.L. Reyes, opined that while some American authorities hold that the mere initiation of proceedings constitutes a binding choice of remedies that precludes pursuit of alternative courses, the better rule is that no binding election occurs before a decision on the merits is had or a detriment to the other party supervenes.^[18]  This is because the principle of election of remedies is discordant with the modern procedural concepts embodied in the Code of Civil Procedure which permits a party to seek inconsistent remedies in his claim for relief without being required to elect between them at the pleading stage of the litigation."^[19]

In the present cases before us, the institution of the civil actions with the estafa cases and the inclusion of another set of civil actions with the BP 22 cases are not exactly repugnant or inconsistent with each other. Nothing in the Rules signifies that the necessary inclusion of a civil action in a criminal case for  violation of the Bouncing Checks Law^[20] precludes the institution in an estafa case of the corresponding civil action, even if both offenses relate to the issuance of the same check.

The purpose of Section 1(b) of Rule 111 is explained by Justice Florenz D. Regalado (ret.), former chairman of the committee tasked with the revision of the Rules of Criminal Procedure.  He clarified that the special rule on BP 22 cases was added, because the dockets of the courts were clogged with such litigations; creditors were using the courts as collectors.  While ordinarily no filing fees were charged for actual damages in criminal cases, the rule on the necessary inclusion of a civil action with the payment of filing fees based on the face value of the  check  involved  was laid down to prevent the practice of creditors of using the threat of a criminal prosecution to collect on their credit free of charge.^[21]

Clearly, it was not the intent of the special rule to preclude the prosecution of the civil action that corresponds to the estafa case, should the latter also be filed.  The crimes of estafa and violation of BP 22 are different and distinct from each other.  There is no identity of offenses involved, for which legal jeopardy in one case may be invoked in the other. The offenses charged in the informations are perfectly distinct from each other in point of law, however nearly they may be connected in point of fact.^[22]

What Section 1(b) of the Rules of Court prohibits is the reservation to file the corresponding civil action.  The criminal action shall be deemed to include the corresponding civil action. "[U]nless a separate civil action has been filed before the institution of the criminal action, no such civil action can be instituted after the criminal action has been filed as the same has been included therein."^[23]  In the instant case, the criminal action for estafa was admittedly filed prior to the criminal case for violation of BP 22, with the corresponding filing fees for the inclusion of the corresponding civil action paid accordingly.^[24]

Furthermore, the fact that the Rules do not allow the reservation of civil actions in BP 22 cases cannot deprive private complainant of the right to protect her interests in the criminal action for estafa. Nothing in the current law or rules on BP 22 vests the jurisdiction of the corresponding civil case exclusively in the court trying the BP 22 criminal case.^[25]

In promulgating the Rules, this Court did not intend to leave the offended parties without any remedy to protect their interests in estafa cases.  Its power to promulgate the Rules of Court is limited in the sense that rules "shall not diminish, increase or modify substantive rights."^[26]  Private complainant's intervention in the prosecution of estafa is justified not only for the prosecution of her interests, but also for the speedy and inexpensive administration of justice as mandated by the Constitution.^[27]

The trial court was, therefore, correct in holding that the private prosecutor may intervene before the RTC in the proceedings for estafa, despite the necessary inclusion of the corresponding civil action in the proceedings for violation of BP 22 pending before the MTC.  A recovery by the offended party under one remedy, however, necessarily bars that under the other.  Obviously stemming from the fundamental rule against unjust enrichment,^[28] this is in essence the rationale for the proscription in our law against double recovery for the same act or omission.

WHEREFORE, the Petition is DISMISSED and the assailed Order AFFIRMED.  Costs against petitioner.

SO ORDERED.

Sandoval-Gutierrez, Carpio-Morales, and Garcia, JJ., concur.
Corona,  J., on official leave.

---

^[1] Rollo, pp. 3-22.

^[2] Id., p. 23. Penned by Judge Thelma A. Ponferrada.

^[3] Id.. p. 24-27.

^[4] June 27, 2002 Order; rollo, p. 23

^[5] Petitioner's Memorandum, pp. 3-5; rollo, pp. 153-155.

^[6] The case was deemed submitted for decision on May 28, 2004, upon receipt by this Court of Petitioner's Memorandum signed by Atty. Redemberto R. Villanueva.  Respondent's Manifestation and Motion For Leave to Adopt Comment as Memorandum, signed by Assistant Solicitor General Fernanda Lampas Peralta and Associate Solicitor Josephine de Sagon Mejia, was received by the Court on August 20, 2003.

^[7]  Petitioner's Memorandum, p. 5; rollo, p. 155.

^[8] Gorospe v. Gamaitan, 98 Phil. 600, 602, March 14, 1956.

^[9] See Joseph v. Bautista, 170 SCRA 540, February 23, 1989.

^[10] 156 SCRA 325, 329-330, December 11, 1987, per Gutierrez Jr., J.

^[11] See Cancio v. Isip, 391 SCRA 393, November 12, 2002.

^[12] Mellon Bank, N.A. v. Magsino, 190 SCRA 629, 649, October 18, 1990, per Fernan, CJ.

^[13] Id., citing People v. Court of Appeals, No. 54641, November 28, 1980, 101 SCRA 450, 463- 464 citing Whitney v. Vermon [Tex. Civ. A] 154, 264, 267 and Southern R. Co. v. Attalla, 147 Ala. 653, 41 S. 664.

^[14] Ibid.

^[15] Royal Resources, Inc. v. Gibraltar Financial Corp., 603 P. 2d 793.

^[16] Giron v. Housing Authority of Opelousas, 393 So. 2d 1267.

^[17] Colonial Leasing Co. of New England, Inc. v. Tracy, 557 P. 2d 639, 276 Or. 1193; Johnson v. Dave's Auto Center, 257 Or. 34, 476 P. 2d 190.

^[18] Radiowealth, Inc. v Lavin, L-18563, April 27, 1963, 7 SCRA 804.

^[19] Giron v. Housing Authority of the City of Opelousas, supra.

^[20] Batas Pambansa Blg. 22.

^[21] Florenz D. Regalado, Remedial Law Compendium, Vol. II, 9^th revised ed., pp. 293-294.

^[22] Ada v. Virola, 172 SCRA 336, 341, April 17, 1989.

^[23] Agpalo, Handbook on Criminal Procedure (2001), pp. 96-97. Emphasis supplied.

^[24] Section 20, Rule 141 of the Rules of Court provides:

"Section 20. Other Fees. - The following fees shall also be collected by the clerks of Regional Trial Courts or courts of the first level, as the case may be:

(a)	In estafa cases where the offended party fails to manifest within fifteen (15) days following the filing of the information that the civil liability arising from the crime has been or would be separately prosecuted[.]"

^[25] Unlike in Section 4 of Presidential Decree No. 1606 (Revising Presidential Decree No. 1486 Creating A Special Court to Be Known as "Sandiganbayan" and For Other Purposes, December 10, 1978), as amended, which provides:

"Any provision of law or Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil liability shall at all times be simultaneously instituted with, and jointly determined in, the same proceeding by the Sandiganbayan or the appropriate courts, the filing of the criminal action being deemed to necessarily carry with it the filing of the civil action, and no right to reserve the filing of such civil action separately from the criminal action shall be recognized: Provided, however, That where the civil action had heretofore been filed separately but judgment therein has not yet been rendered, and the criminal case is hereafter filed with the Sandiganbayan or the appropriate court, said civil action shall be transferred to the Sandiganbayan or the appropriate court, as the case may be, for consolidation and joint determination with the criminal action, otherwise the separate action shall be deemed abandoned."

^[26] See Abellana v. Marave, 156 Phil. 79, May 29, 1974.  Section 5 of Article VIII of the 1987 Constitution provides:

"Sec. 5. The Supreme Court shall have the following powers:

x x x             x x x             x x x

"(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged.  Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court."

^[27] See Banal v. Tadeo Jr.; supra, p. 331.

^[28] Joseph v. Bautista, 170 SCRA 541, 545, February 23, 1989.