Assailed via the instant Petition for Review is the Court of Appeals Decision^[2] of December 9, 2005 which set aside the August 20, 2004 Resolution^[3] of the Department of Justice (DOJ) dismissing the petition for review filed by respondent Jose Antonio Datuin.

On complaint for Estafa by Seishin International Corporation, represented by its president-herein petitioner David B. Campanano, Jr.,^[4] an Information for violation of Batas Pambansa Blg. 22 was filed against respondent.

After trial, respondent was convicted of Estafa by the Regional Trial Court, Branch 71 of Pasig City by Decision of May 3, 1999.^[5] Respondent's appeal before the Court of Appeals, and eventually with this Court, was dismissed and the decision became final and executory^[6] on October 24, 2003.

Later claiming that the complaint of Seishin International Corporation against him was "false, unfounded and malicious" in light of newly discovered (by respondent) evidence, respondent filed a complaint for Incriminating Against Innocent Persons, punishable under Article 363 of the Revised Penal Code, before the Office of the City Prosecutor of Quezon City against petitioner and a certain Yasunobu Hirota.^[7] The pertinent portions of respondent's complaint-affidavit read:

I, JOSE ANTONIO A. DATUIN, of legal age, Filipino, married, with residence and postal address at No. 1 Commonwealth Avenue, Diliman, Quezon City, under oath, depose and state:

x x x x

2.  I was charged by Seishin International Corporation, represented by its President, Mr. David Campanano, Jr. with the crime of Estafa before the Office of the City Prosecutor of Pasig City, by virtue of a criminal information filed against me by said prosecution office with the Regional Trial Court of Pasig City. x x x

x x x x

5. In a decision dated May 3, 1999, the Regional Trial Court of Pasig City, Branch 71, rendered a Decision convicting me (accused-complainant) of estafa x x x;

x x x x

13. Meanwhile, sometime in July 15, 2003, I had my office rented, vacated the same, and had all of my things, including my attaché case, all my records, and other personal belongings, transferred and brought to my house; that while I was sorting and classifying all my things, including the records, as well as those in the attaché case, I found the CASH VOUCHER evidencing my cash payment of the two (2) roadrollers, Sakai brand, which I purchased from Mr. Yasonobu Hirota, representing Seishin International Corporation, in the amount of Two Hundred Thousand (P200,000.00) Pesos.  The cash voucher was dated June 28, 1993, and it was signed by me and Mr. Hirota.  A copy of the said cash voucher is hereto attached as ANNEX "H" hereof;

14.  In light of this newly discovered evidence, the complaint of Seishin International Corporation[,] represented by Mr. David Campanano, Jr.[,] and the testimony of the latter in support of the complaint are false, unfounded and malicious because they imputed to me a crime of Estafa which in the first place I did not commit, as evidenced by the fact that the subject two (2) units of roadrollers, Sakai brand, subject of the criminal complaint before the Office of the City Prosecutor of Pasig City by the corporation through Mr. Campanano, and the information filed in court, had been purchased by me in cash from the said corporation and had already been paid on June 28, 1993.

While I testified also in court, my testimony arose from my having forgotten that I have already fully paid for the said two units of roadrollers, especially that I could not find the necessary document consisting of the cash voucher in support of my defense.  I could not say that I have fully paid for the said units of roadrollers because at that time I was not in possession of any evidence or document to support my claim.

15. In filing the complaint for Estafa - fully knowing that it was baseless and without factual or legal basis, Messrs. Campanano, Jr. and Mr. Hirota should be criminally liable for the crime of Incriminating Innocent Persons punishable under Article 363 of the Revised Penal Code. x x x^[8] (Emphasis and underscoring supplied)

By Resolution of January 20, 2004, the Office of the City Prosecutor of Quezon City^[9] dismissed respondent's complaint for incriminating innocent person in this wise:

It appearing that the case of estafa was filed in Pasig City, and the testimony given by respondent David Campañano, Jr. was also made in Pasig City, this office has no jurisdiction on the above-entitled complainant.

Granting en arguendo that this office has jurisdiction over this case, the undersigned investigating prosecutor finds no basis to indict the respondents of the crime imputed to them for it is an established fact that the Regional Trial Court of Pasig City finds merit in the estafa case filed by Seishin International Corporation, represented by its president, herein respondent David Campañano, Jr.  In fact, the petition for review, including the supplemental motion for reconsideration filed by the herein complainant to [sic] the Honorable Supreme Court was denied for lack of merit and with an order of Entry of Final Judgment.

As to the discovery of the alleged new evidence, the cash voucher, dated June 28, 1993[,] it is not this office that should determine the materiality or immateriality of it.^[10]  (Underscoring supplied)

By petition for review, respondent elevated the case to the DOJ which dismissed the petition outright by Resolution^[11] of August 20, 2004, holding that "[it] found no such error committed by the prosecutor that would justify the reversal of the assailed resolution which is in accord with the law and evidence on the matter."  Respondent's motion for reconsideration was likewise denied by DOJ Resolution^[12] of April 11, 2005.

The Court of Appeals, however, set aside the resolutions of the DOJ by Decision of December 9, 2005, the fallo of which reads:

WHEREFORE, the petition is given due course, and the assailed Resolutions of the Department of Justice are hereby SET ASIDE. The case is directed to be remanded to the City Prosecutor's Office of Quezon City for further investigation.^[13]  (Emphasis and underscoring supplied)

Hence, the present petition, petitioner faulting the Court of Appeals in the main:

. . . IN RULING THAT THE COUNTER-AFFIDAVIT OF PETITIONER DAVID B. CAMPANANO EXECUTED IN QUEZON CITY ON NOVEMBER 30, 2003 AND NOT THE AFFIDAVIT-COMPLAINT OF PRIVATE RESPONDENT JOSE ANTONIO DATUIN THAT [sic] IS DETERMINATIVE OF THE JURISDICTION OF QUEZON CITY PROSECUTOR'S OFFICE TO CONDUCT PRELIMINARY INVESTIGATION ON THE COMPLAINT OF PRIVATE RESPONDENT DATUIN AGAINST PETITIONER INCRIMINATING AGAINST INNOCENT PERSONS.

x x x x

. . . IN RULING THAT THE DISMISSAL OF THE COMPLAINT-AFFIDAVIT OF RESPONDENT DATUIN BY THE DEPARTMENT OF JUSTICE CONSTITUTES AN ABUSE OF DISCRETION SINCE THE COMPLAINT-AFFIDAVIT APPEARS TO BE MERITORIOUS.^[14]  (Underscoring supplied)

The petition is impressed with merit.

It is doctrinal that in criminal cases, venue is an essential element of jurisdiction;^[15] and that the jurisdiction of a court over a criminal case is determined by the allegations in the complaint or information.^[16]

For purposes of determining the place where the criminal action is to be instituted, Section 15(a) of Rule 110 of the Revised Rules on Criminal Procedure of 2000 provides that "[s]ubject to existing laws, the criminal action shall be instituted and tried in the court of the municipality or territory where the offense was committed or where any of its essential ingredients occurred." This is a fundamental principle, the purpose of which is not to compel the defendant to move to, and appear in, a different court from that of the province where the crime was committed as it would cause him great inconvenience in looking for his witnesses and other evidence in another place.^[17]

The complaint-affidavit for incriminating innocent person filed by respondent with the Office of the City Prosecutor of Quezon City on August 28, 2003 does not allege that the crime charged or any of its essential ingredients was committed in Quezon City. The only reference to Quezon City in the complaint-affidavit is that it is where respondent resides.^[18] Respondent's complaint-affidavit was thus properly dismissed by the City Prosecutor of Quezon City for lack of jurisdiction.

The Court of Appeals' conclusion-basis of its reversal of the DOJ Resolutions that since petitioner's November 20, 2003 Counter-Affidavit^[19] to respondent's complaint for incriminating innocent person was executed in Quezon City, the Office of the City Prosecutor of Quezon City had acquired jurisdiction to conduct preliminary investigation of the case is thus erroneous.

In any event, the allegations in the complaint-affidavit do not make out a clear probable cause of incriminating innocent person under Article 363 of the Revised Penal Code.

Article 363 of the Revised Penal Code penalizes "[a]ny person who, by any act not constituting perjury, shall directly incriminate or impute to an innocent person the commission of a crime." The crime known as incriminating innocent person has the following elements: (1) the offender performs an act; (2) by such act he directly incriminates or imputes to an innocent person the commission of a crime; and (3) such act does not constitute perjury.^[20]

The pertinent portion of respondent's complaint-affidavit reads:

14. In light of this newly discovered evidence, the complaint of Seishin International Corporation[,] represented by Mr. David Campanano, Jr.[,] and the testimony of the latter in support of the complaint are false, unfounded and malicious because they imputed to me a crime of Estafa which in the first place I did not commit, as evidenced by the fact that the subject two (2) units of roadrollers, Sakai brand, subject of the criminal complaint before the Office of the City Prosecutor of Pasig City by the corporation through Mr. Campanano, and the information filed in court, had been purchased by me in cash from the said corporation and had already been paid on June 28, 1993.  (Emphasis supplied)

Article 363 does not, however, contemplate the idea of malicious prosecution - someone prosecuting or instigating a criminal charge in court.^[21] It refers "to the acts of PLANTING evidence and the like, which do not in themselves constitute false prosecution but tend directly to cause false prosecutions."^[22] Apropos is the following ruling of this Court in Ventura v. Bernabe:^[23]

Appellants do not pretend, neither have they alleged in their complaint that appellee has planted evidence against them. At the most, what appellee is alleged to have done is that he had filed the criminal complaint above-quoted against appellant Joaquina Ventura without justifiable cause or motive and had caused the same to be prosecuted, with him (appellee) testifying falsely as witness for the prosecution. These acts do not constitute incriminatory machination, particularly, because Article 363 of the Revised Penal Code punishing said crime expressly excludes perjury as a means of committing the same.

Evidently, petitioner may not, under respondent's complaint-affidavit, be charged with the crime of incriminating innocent person under Article 363.  Parenthetically, respondent's conviction bars even the filing of a criminal case for false testimony against petitioner.^[24]

WHEREFORE, the petition is GRANTED.  The Court of Appeals Decision of December 9, 2005 is REVERSED and SET ASIDE.  The complaint of respondent for Incriminating Innocent Person filed against petitioner DAVID B. CAMPANANO, JR. is DISMISSED.

SO ORDERED.

Quisumbing, (Chairperson), Carpio, Tinga, and Velasco, Jr., JJ., concur.

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^[1] The Court of Appeals should not be impleaded as party in petitions filed with this Court under Rule 45 of the Rules of Court.

^[2] Rollo, pp. 93-99. Penned by Associate Justice Eugenio Labitoria and concurred in by Associate Justices Eliezer Delos Santos and Jose Reyes, Jr.

^[3] Id. at 77-78.  Penned by Chief State Prosecutor Jovencito Zuño.

^[4] Sometimes spelled Campañano.

^[5] Rollo, pp. 46 and 28.

^[6] Id. at 94.

^[7] Sometimes spelled Yasonobu.

^[8] Rollo, pp. 27-31 exclusive of Annexes.

^[9] Id. at 45-47.

^[10] Id. at 46-47.

^[11] Id. at 77.

^[12] Id. at 79.

^[13] Id. at 98.

^[14] Id. at 11-12.

^[15] Fukuzume v. People, G.R. No. 143647, November 11, 2005, 474 SCRA 570, 580;  Nocum v. Tan, G.R. No. 145022, September 23, 2005, 470 SCRA 639, 648; Agustin v. Pamintuan, G.R. No. 164938, August 22, 2005, 467 SCRA 601, 609.

^[16] Vide: Agustin v. Pamintuan, supra.

^[17] Beltran v. Ramos, 96 Phil. 149 (1954).

^[18] Rollo, p. 27.

^[19] Id. at 34-44.

^[20] 2 Reyes, THE REVISED PENAL CODE, 15^th ed., 2001, p. 985.

^[21] Ventura v. Bernabe, No. L-26760, April 30, 1971, 38 SCRA 587, 594.

^[22] Vide: Buenaventura et al. v. Sto. Domingo and Ignacio, 103 Phil. 239, 244 (1958); Regalado, CRIMINAL LAW CONSPECTUS, 1^st ed., 2000, p. 662, citing Ventura v. Bernabe, supra; vide also People v. Rivera, 59 Phil. 236, 242 (1933) which ruled:

"There is no doubt that the facts alleged in the informations above-quoted fall within the definition of the offense of "acusacion" or "denuncia falsa" which is contained in article 326 of the Codigo Penal, which was superseded on January 1, 1932, by the Revised Penal Code.

x x x x

Article 326 of the Codigo Penal does not appear in the Revised Penal Code, which contains no offense denominated "acusacion o denuncia falsa" or its equivalent. But the Solicitor-General contends that article 363 of the Revised Penal Code should be construed to embrace the crime of false accusation or complaint as formerly penalized under article 326 of the Codigo Penal.

Article 363 in the Spanish text which is decisive is as follows, under the heading of "Asechanzas Inculpatorias":

"ART. 363. Inculpacion de un inocente. -- El que, de cualquier manera que no constituyere falso testimonio, ejecutare un acto que tienda directamente a inculpar o imputar a un inocente la comision de un delito, sera castigado con la pena de arresto mayor."

x x x x

Comparing now article 363 of the Revised Penal Code with article 326 of the old Penal Code, it will be observed that under article 326 of the former Penal Code, the gravamen of the offense is the imputation itself when made before an administrative or judicial officer, whereas in article 363 of the Revised Penal Code the gravamen of the offense is performing an act which "tends directly" to such an imputation. Article 326 of the old Penal Code punishes false prosecutions whereas article 363 of the Revised Penal Code punishes any act which may tend directly to cause a false prosecution.

x x x x

x x x It seems the more reasonable and sensible interpretation to limit article 363 of the Revised Penal Code to acts of "planting" evidence and the like, which do not in themselves constitute false prosecutions but tend directly to cause false prosecutions.

x x x x

It is to be noted that article 326 of the old Penal Code contains the provision that the accuser could be prosecuted only on the order of the court, when the court was convinced upon the trial of the principal cause that there was sufficient basis for a charge of false accusation. Article 363 of the Revised Penal Code contains no such safeguard. If we extended said article by interpretation to administrative and judicial proceedings, it is apparent that we would open the door to a flood of prosecutions in cases where the defendants were acquitted. There is no reason to believe that the Legislature intended such a result." (Emphasis supplied)

^[23] Supra note 21 at 595.

^[24] Regalado, supra note 22 at 365.