Before us is a petition for review on certiorari of the Decision1 [Decision of the Court of Appeals dated February 26, 1996 in CA-G.R. SP No. 36742 entitled "HAGONOY RURAL BANK, INC. versus HON. D. ROY A. MASADAO, JR., Judge, RTC, Malolos, Bulacan, Branch 9; HON. SECRETARY OF JUSTICE, PROSECUTOR JESUS Y. MANARANG, PEOPLE OF THE PHILIPPINES and CRISTINA PEREZ."] of the Court of Appeals which annulled and set aside an Order2 [Issued by Judge D. Roy A. Masadao of Branch 9 of the Regional Trial Court (RTC) of Malolos, Bulacan.] issued by the Regional Trial Court (RTC) of Malolos, Bulacan. The assailed Order denied the motion for reconsideration filed by private respondent Hagonoy Rural Bank, Inc. of an order allowing the amendment of the information in Criminal Case No. 1604-M-943 [THE PEOPLE OF THE PHILIPPINES versus CRISTINA PEREZ, CRISTINA MEDINA, ALBERTO FABIAN, MILAGROS MARTIN and SUSAN JORDAN.] to exclude petitioner Cristina Perez as one of the accused therein.

The following facts are undisputed:

Private respondent Hagonoy Rural Bank, Inc. owns the Hagonoy Money Shop which employed petitioner Cristina O. Perez as Officer-In-Charge, Cashier and Teller, Alberto S. Fabian as Bookkeeper, and Cristina Medina and Milagros Martin as Solicitors/Field Managers. Jksm

For the period starting August 3, 1992 up to December 5, 1993, the Laya, Manabat, Salgado and Company, an independent management, consultancy and accounting firm, conducted an audit of the financial affairs of the Hagonoy Money Shop. The auditing firm found anomalies in more or less twenty-eight (28) savings accounts consisting of withdrawals which were recorded in the subsidiary ledgers of the money shop but not in the passbooks which were in the possession of the depositors. Although these withdrawals were supported by withdrawal slips, the signatures appearing thereon were noticeably different from the sample signatures written by the bona fide depositors in their specimen signature cards and/or in the subsidiary ledgers. The audit also revealed that to cover-up the anomalous withdrawals, fake deposits were recorded in the money shop’s subsidiary ledgers whenever the remaining balance in a particular savings account was depleted below the amount of legitimate withdrawals made by a depositor. All in all, the anomalous withdrawals amounted to P879,727.08.4 [ANNEX "A" of the Petition, pp. 1-2, Rollo, pp. 42-43.]

The anomalies unearthed by the auditing firm prompted the private respondent to file an affidavit-complaint for estafa against the aforementioned employees of the money shop and two outsiders, Susan Jordan and Brigida Mangahas.5 [Id., p. 3, Rollo, p. 44.] On February 18, 1994, Acting Provincial Prosecutor, Jesus Y. Manarang (hereinafter "prosecutor"), issued a resolution finding prima facie evidence that the petitioner and her co-employees, Alberto Fabian, Cristina Medina and Milagros Martin had committed the crime of estafa thru falsification of commercial documents, and recommending the filing of the corresponding information against them with the Regional Trial Court (RTC) of Malolos, Bulacan. The charges against Susan Jordan and Brigida Mangahas were, however, dismissed.6 [ANNEX "D" of the Petition, p.17, Rollo, p. 95.]Chief

Aggrieved by the said resolution, petitioner filed a petition for review with the Secretary of Justice praying for the dismissal of the charges against her. On the other hand, private respondent moved for a reconsideration of the portion of the same resolution dismissing the complaint against Susan Jordan.7 [Supra, see note 4, p. 10, Rollo, p. 50.]

In a resolution dated April 19, 1994, the prosecutor granted private respondent’s motion for reconsideration.8 [ANNEX "E" of the Petition, p. 3, Rollo, p. 98.] Hence, on April 27, 1994, an information for estafa thru falsification of commercial documents was filed against herein petitioner, Alberto Fabian, Milagros Martin, Cristina Medina and Susan Jordan, and docketed as Criminal Case No. 1604-M-94 in Branch 9 of the RTC of Malolos, Bulacan.9 [Supra, see note 7.]

On September 23, 1994, then Secretary of Justice, Franklin M. Drilon, issued Resolution No. 696, series of 1994 ordering the prosecutor to cause the dismissal of the information against herein petitioner on the ground of insufficient evidence.10 [ANNEX "G" of the Petition, Rollo, p. 99.] The private respondent filed a motion for reconsideration of the order of the Secretary of Justice, which motion, however, was denied with finality by the latter.11 [ANNEX "I" of the Petition, Rollo, p. 108.]Esmsc

Meanwhile, pursuant to the said directive of the Secretary of Justice, the prosecutor filed a motion in the RTC praying for the dismissal of the case against herein petitioner and the admission of an amended information excluding petitioner as one of the accused in Criminal Case No. 1604-M-94.12 [ANNEX "H" of the Petition, p. 1, Rollo, p. 104.] On January 13, 1995, presiding Judge D. Roy A. Masadao of the said court granted the said motion. Private respondent assailed the dismissal of the case against the petitioner in a motion for reconsideration filed in the RTC. However, the trial court denied the said motion in an Order dated February 21, 1995 after finding that the private respondent, as private complainant, had no legal personality to question the dismissal of the criminal charges against the petitioner.13 [ANNEX "K" of the Petition, pp. 1-2, Rollo, pp. 110-111.]

Alleging that Judge Masadao had issued the said order with grave abuse of discretion amounting to lack of jurisdiction, private respondent filed a petition for certiorari and mandamus with a prayer for the issuance of a temporary restraining order and a writ of preliminary injunction with the Court of Appeals. On February 23, 1996, the Court of Appeals rendered a decision annulling and setting aside the assailed Order of February 21, 1995 and directing Judge Masadao to resolve with dispatch the private respondent’s motion for reconsideration on the basis of its merit or lack thereof.14 [Supra, see note 4, p. 23, Rollo, p. 63.]

Hence, this petition assigning the following errors to the Court of Appeals: Esmmis

Succinctly put, the issues in the instant case are: first, whether or not Judge Masadao, presiding judge of RTC Branch 9, Malolos, Bulacan, committed grave abuse of discretion in granting the prosecutor’s motion to dismiss the criminal case against petitioner without an independent assessment of the sufficiency or insufficiency of the evidence against the latter; second, whether or not the private respondent, as private complainant, in a criminal case has the legal personality to question the dismissal by the trial judge of the criminal charges against herein petitioner upon the motion filed by the prosecutor; and third, whether or not the dismissal of the charges against the petitioner is warranted by the evidence at hand.

First. Judge Masadao acted with grave abuse of discretion in granting the prosecutor’s motion to dismiss the criminal charges against the petitioner on the basis solely of the recommendation of the Secretary of Justice.

In moving for the dismissal of the case against the petitioner, the prosecutor averred:

The Order granting the above quoted motion states in its entirety that:

The above quoted Order allowing the amendment of the information to exclude petitioner therefrom effectively dismissed the criminal case against the latter. That the trial judge did not make an independent evaluation or assessment of the merits of the case is apparent from the foregoing order. Judge Masadao’s reliance on the prosecutor’s averment that the Secretary of Justice had recommended the dismissal of the case against the petitioner was, to say the least, an abdication of the trial court’s duty and jurisdiction to determine a prima facie case, in blatant violation of this Court’s pronouncement in Crespo v. Mogul18 [151 SCRA 462 (1987).] as reiterated in the later case of Martinez v. Court of Appeals,19 [237 SCRA 575 (1994).] to wit: Ky-calr

Petitioner contends that the doctrine laid down by this Court in Martinez v. Court of Appeals21 [See note 19, supra.] is not applicable to the instant case for several reasons. First, in the Martinez case, the private offended party was deprived of due process as he was not furnished with a copy of the prosecution’s motion to dismiss, whereas in this case, not only was the private respondent furnished a copy of the motion to dismiss, it was also given an opportunity to file its comment thereon. Second, in the case at bar, the Solicitor General adopts the view that the trial judge acted correctly in granting the motion to dismiss while in Martinez v. Court of Appeals,22 [Ibid.] the Solicitor General recommended the setting aside of the order granting the motion to dismiss. Finally, the dismissal of the criminal case against the accused in Martinez v. Court of Appeals23 [Ibid.] was based solely on the findings of the Acting Secretary of Justice. On the other hand, at the time Judge Masadao granted the motion to dismiss the criminal case against the petitioner, he already had before him the affidavit-complaint of private respondent, the resolution of the prosecutor finding probable cause against the employees of the money shop, the prosecutor’s motion to dismiss the case against the petitioner, the private respondent’s comment and supplemental comment to the latter, and the position papers of the petitioner and the private respondent.24 [Petitioner’s Memorandum, pp. 11-12, Rollo, pp. 174-175.]

Petitioner’s arguments are not convincing. Me-sm

A perusal of the Martinez case reveals that the opinion of this Court finding the dismissal of the case against the accused erroneous was not predicated on the violation of the private offended party’s right to due process nor on the recommendation of the Solicitor General. In fact, we categorically stated therein that the "fault or error tainting the order of dismissal of the lower court consists in its failure to observe procedural due process and to exercise its discretion properly and judiciously."25 [See note 19, supra at p. 584.] The first part refers to the fact that the private offended party was not afforded his day in court while the latter pertains to the failure of the judge to make an independent assessment of the evidence or lack thereof against the accused. Otherwise stated, the first is not the rationale behind the latter declaration. S-l-x

Furthermore, petitioner’s asseveration that as the records of the case were already before Judge Masadao, it can be safely assumed that he had studied them and thereafter agreed with the prosecution that the evidence did not support the earlier finding of probable cause against the petitioner. This is non sequitur and is simply belied by the order that nonchalantly granted the motion to dismiss. Moreover, Judge Masadao categorically declined to pass upon the merits of the private respondent’s motion for reconsideration of the dismissal of the criminal case against the petitioner, and chose to summarily deny the same on the ground of the private respondent’s lack of personality to revive the criminal charges against the petitioner.26 ["O R D E R

Second. The private respondent, as private complainant, had legal personality to assail the dismissal of the criminal case against the petitioner on the ground that the order of dismissal was issued with grave abuse of discretion amounting to lack or excess of jurisdiction. Sc-slx

In the case of Dela Rosa v. Court of Appeals,27 [253 SCRA 499 (1996).] we held that:

Thus, while it is only the Solicitor General that may bring or defend actions on behalf of the Republic of the Philippines, or represent the People or State in criminal proceedings pending in the Supreme Court and the Court of Appeals,29 [Memorandum of the Office of the Solicitor General, p. 16, Rollo. P. 211.] the private offended party retains the right to bring a special civil action for certiorari in his own name in criminal proceedings before the courts of law. Sl-xsc

Furthermore, our ruling in the case of Dee v. Court of Appeals30 [238 SCRA 254 (1994).] allowing the private offended party to file a special civil action for certiorari to assail the order of the trial judge granting the motion to dismiss upon the directive of the Secretary of Justice is apropos. We held therein that although the correct procedure would have been to appeal the recommendation of the Secretary of Justice to the Office of the President, the said remedy was unavailable to the private offended party as the penalty involved was neither reclusion perpetua nor death.31 [Memorandum Circular No. 1266, in relation to Memorandum Circular No. 1294 dated Nov. 4, 1993:

When complainants and/or respondents petition for an appeal/review by the President of investigations conducted by Provincial/City Fiscals and resolved on appeal by the Ministry of Justice, the petition shall not be given due course and shall be forthwith denied, except that in offenses punishable by reclusion perpetua to death wherein new and material issues are raised which were not previously presented before the Ministry of Justice and were nor ruled upon in the subject resolution by the Ministry of Justice, the President may order the Ministry of Justice to reopen/review the case provided that the prescription of the offense is not due to lapse within six (6) months from notice of the questioned resolution, and provided further that the petitioner for appeal/review is filed within thirty (30) days from such notice." Cited in Dee vs. Court of Appeals, see note 30, supra at p. 262.] Hence, as no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law was available to the private offended party, filing of the petition for certiorari under Rule 65 of the Rules of Court was proper.32 [See note 30, supra at pp. 261-262.]Sl-xm-is

It follows, therefore, that if the private respondent in this case may file a special civil action for certiorari, then with more reason does it have legal personality to move for a reconsideration of the order of the trial court dismissing the criminal charges against the petitioner. In fact, as a general rule, a special civil action will not lie unless a motion for reconsideration is first filed before the respondent tribunal, to allow it an opportunity to correct its assigned errors.33 [Macawiwili Gold Mining and Development Co., Inc. vs. Court of Appeals, 297 SCRA 602, 611 (1998) citing Lasco vs. United Nations Revolving Fund for Natural Resources, 241 SCRA 681, 684 (1995).]

In support of her position, petitioner invokes our ruling in Caes v. Intermediate Appellate Court34 [179 SCRA 54 (1989).] which, as correctly pointed out by the Court of Appeals, is not applicable to the case at bar. We quote with approval the Court of Appeals’ incisive opinion on this matter:

Third. This Court cannot pass upon the sufficiency or insufficiency of the evidence against the petitioner. Rtc-spped

As a general rule, the determination of probable cause is not lodged with this Court. Our duty in an appropriate case is confined to the issue of 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 amounting to want of jurisdiction. This is consistent with the general rule that criminal prosecutions may not be restrained or stayed by injunction, preliminary or final.36 [Roberts, Jr. v. Court of Appeals, see note 20, supra at p. 345.] There are, however, exceptions37 ["a. To afford adequate protection to the constitutional rights of the accused (Hernandez vs. Albano, et al., L-19272, January 25, 1967, 19 SCRA 95);

j. Where there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied (Salonga vs. Paño, et al., L-59524, February 18, 1985, 134 SCRA 438)." Cited in Roberts vs. Dee, supra at p. 345.] to this rule, none of which are obtaining in the case now before us. Scl-aw

WHEREFORE, the petition is DENIED and the decision of the Court of Appeals dated February 23, 1996 in CA-G.R. SP No. 36742 is hereby AFFIRMED.

Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, JJ., concur. Sc-lex