THIRD DIVISION
[G.R. No. 200902. April 23, 2014.]
ALBERTO LARDIZABAL, REP. BY MA. CELY LARDIZABAL, petitioner, vs. REYNALDO JESUS B. PASCO SR., respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution dated April 23, 2014, which reads as follows:
"G.R. No. 200902 (Alberto Lardizabal, rep. by Ma. Cely Lardizabal v. Reynaldo Jesus B. Pasco Sr.). — Petitioner Alberto Lardizabal (Alberto) was the registered owner of two parcels of land in San Mateo, Rizal. 1 Respondent Reynaldo Jesus Pasco, Sr. (Reynaldo) was the President of Park Developers, Incorporated (PDI). On September 14, 1995 Alberto and PDI (through Reynaldo), entered into a Joint Venture Agreement (Agreement) covering the two lands, the pertinent provisions of which reads:
14. PARTICIPATION/SHARING — That in consideration of the DEVELOPERS [sic.] participation in the joint venture project, the OWNER/S do hereby agree and bind themselves to a 55/45% sharing with the DEVELOPERS; Fifty-five percent (55%) of all the sales of the memorial lots including interest and surcharges due thereon, shall be for the credit of the OWNER/S; Provided, however, that income from Interment Services and Perpetual Care fees shall be for the sole credit of the OWNER/S, said aspect of the project being the sole responsibility and obligation of the OWNER/S; That all sales proceeds shall be deposited in two (2) separate accounts in a reputable bank to be selected by both parties;
15. MARKETING — Marketing and/or sales of all memorial lots shall be jointly undertaken by both the DEVELOPERS and OWNER/S. For this purpose, both parties shall designate their respective representatives or personnel to jointly manage or supervise the marketing and sales including promotions, advertisement, collection, accounting and other administrative functions. STcADa
All the expenses incurred in connection herewith, including salaries and wages of office staff, commissions, allowances, office supplies, light, water, telephone and other incidental expenses, shall be prorated between the parties according to their percentage of sharing above stated;" 2
According to Alberto, PDI and Reynaldo failed and continuously refused to remit his share in the sales proceeds and all the incomes from interment services and perpetual care amounting to unlawful misappropriation or conversion of money due him.
Aggrieved, Alberto filed a complaint for estafa under Article 315 (1) (b) of the Revised Penal Code (RPC) against Reynaldo before the Office of the City Prosecutor (OCP) of Pasig City. At the same time, he filed a civil action against Reynaldo and PDI for specific performance with damages and preliminary mandatory and prohibitory Injunction before the Regional Trial Court (RTC) of Quezon City.
In a Resolution dated May 11, 2009 the OCP dismissed Alberto's complaint for estafa for lack of probable cause. Alberto appealed the dismissal to the Secretary of the Department of Justice (DOJ) but the latter denied his petition on October 13, 2009. The Secretary denied his motion for reconsideration as well on March 1, 2010.
Alberto thus filed a petition for certiorari under Rule 65 of the Rules of Court before the Court of Appeals (CA) in CA-G.R. SP 113852. On February 29, 2012, the CA 3 dismissed the petition for Alberto's failure to show that the DOJ Secretary gravely abused her discretion in issuing the challenged resolutions, hence, this petition. DIETcC
Probable cause consists in such facts as are sufficient to engender a well-founded belief that a crime has been committed and that respondent is probably guilty of it and thus should be held for trial. In determining probable cause, the average person weighs facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been committed and that it was committed by the accused. 4
The Court may not be compelled to pass upon the correctness of the exercise of the public prosecutor's function unless there is a showing of grave abuse of discretion or manifest error in his findings. 5 Hence, the determination of whether or not probable cause exists to warrant the prosecution in court of an accused is consigned and entrusted to the DOJ. And by the nature of his office, a public prosecutor is under no compulsion to file a particular criminal information where he is not convinced that he has evidence to prop up its averments, or that the evidence at hand points to a different conclusion. 6
Here, the OCP dismissed petitioner Alberto's complaint against Reynaldo based on its finding that the parties had, by virtue of the joint venture agreement between them, entered into what amounted to a contract of partnership. 7 The OCP pointed out that Reynaldo could not, in a contract of partnership, be held liable for estafa of money or property received for the partnership when the business commenced and earned profits. 8THaAEC
But as the Court ruled in Tuazon v. Bolaños, 9 a corporation cannot by its nature enter into a partnership contract. Consequently, the OCP and the DOJ Secretary dismissed Alberto's complaint for the wrong reason. Still, this gives no comfort to petitioner Alberto.
Estafa through misappropriation or conversion has the following elements: 1) 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; 2) there is a misappropriation or conversion of such money or property by the offender or denial on his part of such receipt; 3) such misappropriation or conversion or denial is to the prejudice of another; and 4) there is a demand made by the offended party on the offender.
Here, the first element — the receipt of money in trust for the offended party under an obligation to deliver the same — does not appear to be present. The agreement does not impose on Reynaldo or PDI the obligation to immediately turn over 55% of all collections from sales of memorial lots and from all earnings out of interment services and perpetual care. The collections were subject to deductions for all kinds of expenses. In other words, the sharing between the parties referred to net earnings. For this reason, that Reynaldo or PDI continued to hold on to those collections cannot amount to estafa by conversion until Alberto's net shares have been established. Alberto's remedy lies in the civil action that he filed against them with applications for provisional remedies to protect his interests.
WHEREFORE, the Court DENIES the petition for the above reason.
SO ORDERED." cESDCa
Very truly yours,
(SGD.) LUCITA ABJELINA SORIANODivision Clerk of Court
Footnotes
1. Identified as Lot 68, Plan Psu-99456 with an area of 20,878 square meters and Lot 1 of the cons-subd. Pcs-045811-007617 with an area of 19,291 sq.m. covered by Certificates of Title 400116 and 253568, respectively. Rollo, p. 5.
2. Id. at 48.
3. Penned by Justice Japar B. Dimaampao with the concurrence of Justices Michael P. Elbinias and Agnes Reyes Carpio.
4. Clay and Feather International, Inc. v. Lichaytoo, G.R. No. 193105, May 30, 2011, 649 SCRA 516, 523.
5. Metropolitan Bank & Trust Company v. Gonzales, G.R. No. 180165, April 7, 2009, 584 SCRA 631, 641.
6. Sps. Balangauan v. The Hon. CA, Special 19th Div., 584 Phil. 183, 202 (2008).
7. See Resolution of the Office of the City Prosecutor of Pasig City dated May 11, 2009.
8. Id.
9. 95 Phil. 106, 109 (1954).