[G.R. No. 154920. August 15, 2003]
RODNEY HEGERTY, petitioner, vs. THE HON. COURT OF APPEALS and ALLAN NASH, respondents.
D E C I S I O N
This petition seeks to annul and set aside the decision of the Court of Appeals in CA-G.R. SP No. 66680 of the Office of the City Prosecutor of Manila dismissing the complaint for estafa filed against petitioner Rodney Hegerty, as well as the resolution of the Secretary of Justice dismissing respondent Allan Nash’s appeal and denying his motion for reconsideration for having been filed out of time. which reversed the resolution
Respondent Allan Nash alleged that petitioner Rodney Hegerty, together with the deceased Don Judevine and James Studenski, invited him to invest in a foreign exchange scheme with a guaranteed return of 10.45% per annum on the money invested. From July 1992 to November 28, 1997, Nash invested a total of US$236,353.34.
Sometime in December 1997, Hegerty informed Nash that all his investments had been lost after he lent a portion of the investment to Swagman Hotels and Travel, Inc., of which he was a stockholder. Initially, Hegerty offered to return to Nash half of his total investment, but later on withdrew the offer.
After his demands were ignored, Nash filed a complaint-affidavit against Hegerty before the City Prosecutor of Manila for estafa under Article 315 (1) (b) of the Revised Penal Code.
For his part, Hegerty denied making any invitation to Nash to invest his money in any foreign exchange scheme. Neither did he divert any portion of such investment to the Swagman Group of Companies. He, however, admitted his acquaintance with Judevine and Studenski but denied that they were his business partners. He likewise disclaimed any knowledge of or participation in any of the receipts and cash vouchers presented by Nash supposedly as proofs of his investments.
The City Prosecutor dismissed the complaint for estafa against Hegerty for insufficiency of evidence. Upon receipt of a copy of the said resolution on June 16, 1999, counsel of Nash filed a motion for reconsideration. On May 8, 2000, Nash himself received a copy of the resolution denying the motion for reconsideration.
On May 19, 2000, Nash filed an appeal with the Department of Justice (DOJ), however, the same was dismissed for having been filed out of time. He filed a motion for reconsideration, which was denied again for having been filed beyond the reglementary period of ten (10) days.
Undaunted, Nash filed with the Court of Appeals a petition for certiorari and mandamus under Rule 65 of the 1997 Rules of Civil Procedure, contending that the DOJ acted in grave abuse of discretion amounting to lack of or in excess of jurisdiction when it dismissed his appeal and denied his motion for reconsideration.
On June 28, 2002, the Court of Appeals rendered the assailed decision, the dispositive portion of which reads:
WHEREFORE, premises considered, the PETITION is GRANTED. The undated resolution and 22 August 2001 resolution are REVERSED and SET ASIDE. The public respondent is directed to prosecute respondent Hegerty for the crime of estafa under Article 315 (1) (b) of the Revised Penal Code.
Hegerty is now before us on this petition for review, raising the following issues:
I. DOES THE RESPONDENT COURT OF APPEALS HAVE JURISDICTION OVER A CASE WHICH STARTED AT THE OFFICE OF THE PROSECUTOR OF MANILA THEN APPEALED TO THE DEPARTMENT OF JUSTICE BUT WHICH APPEAL WAS FILED WAY OUT OF TIME?
II. MAY THE RESPONDENT COURT OF APPEALS ACTING WITHOUT JURISDICTION ORDER THE PROSECUTION OF A CRIMINAL CASE?
Hegerty contends that since Nash’s appeal with the DOJ and his motion for reconsideration were both filed out of time, the prosecutor’s resolution had become final and executory. Consequently, the DOJ and the Court of Appeals never acquired jurisdiction over the case. Corollarily, the Court of Appeals does not have the authority to order the filing of a case in the absence of grave abuse of discretion on the part of the prosecutor.
We agree. 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. 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.
The pivotal question, therefore, in this case is: whether the City Prosecutor acted with grave abuse of discretion in dismissing the criminal complaint for estafa against Hegerty.
In D.M. Consunji, Inc. v. Esguerra, we defined grave abuse of discretion in this wise:
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.
The City Prosecutor had the duty to determine whether there was a prima facie case for estafa based on sufficient evidence that would warrant the filing of an information. The elements of estafa through misappropriation as defined and penalized under Article 315 (1) (b) are:
(1) That money, goods, or other personal property be 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) That there be misappropriation or conversion of such money or property by the offender, or denial on his part of such receipt;
(3) That such misappropriation or conversion or denial is to the prejudice of another; and
(4) That there is a demand made by the offended party to the offender.
The City Prosecutor dismissed the complaint for estafa based on the following findings:
Recouping everything that has been maintained and asserted by the parties, there is really reason to believe that the complainant had in fact made some investments with the late DON JUDEVINE who acknowledged receipts thereof and bound himself thereby alone. There is, however, an utter and absolute absence of a showing that the respondent partook of the said investments nor had any business dealing with either the late DON JUDEVINE or the complainant. Complainant also tried in vain to show some form of a partnership between the respondent and the two deceased individuals but the former failed to adduce any tangible evidence to support the same except his general declarations which remain bare as they were. 
A public prosecutor, by the nature of his office, is under no compulsion to file a criminal information where no clear legal justification has been shown, and no sufficient evidence of guilt nor prima facie case has been presented by the petitioner.
We need only to stress that the determination of probable cause during a preliminary investigation or reinvestigation is recognized as an executive function exclusively of the prosecutor. An investigating prosecutor is under no obligation to file a criminal action where he is not convinced that he has the quantum of evidence at hand to support the averments. Prosecuting officers have equally the duty not to prosecute when after investigation or reinvestigation they are convinced that the evidence adduced was not sufficient to establish a prima facie case. Thus, the determination of the persons to be prosecuted rests primarily with the prosecutor who is vested with discretion in the discharge of this function.
In Quiso v. Sandiganbayan, we 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 remedy of mandamus does not lie to compel the City Prosecutor to file an Information against petitioner. There being no showing of grave abuse of discretion which will warrant the reversal of the dismissal of the complaint against petitioner, there is also no ground to issue a writ of mandamus. In the case at bar, we find no evidence to prove that the City Prosecutor abused, much less gravely abused, his discretion when he dismissed the complaint for estafa filed against Hegerty.
Moreover, the appeal filed by respondent with the Department of Justice was out of time. Section 2 of DOJ Order No. 223 dated June 30, 1993, which was then in force, provides:
When to appeal. – The appeal must be filed within a period of fifteen (15) days from receipt of the questioned resolution by the party or his counsel. The period shall be interrupted only by the filing of a motion for reconsideration within ten (10) days from receipt of the resolution and shall continue to run from the time the resolution denying the motion shall have been received by the movant or his counsel.
In the case at bar, respondent’s counsel received a copy of the resolution of the City Prosecutor dismissing the complaint on June 16, 1999. The tenth day, June 26, fell on a Saturday; thus, the motion for reconsideration was filed on Monday, June 28, 1999. On May 8, 2000, respondent received the resolution denying his motion for reconsideration. He filed an appeal with the Department of Justice on May 19, 2000.
Under the above-quoted rule, respondent’s fifteen-day period to appeal was interrupted by the filing of the motion for reconsideration on the tenth day. The said period continued to run again when he received the resolution denying his motion for reconsideration, but only for the remaining period of five days. Therefore, respondent only had until May 15, 2000 – May 13, 2000 was a Saturday – within which to appeal. His appeal filed on May 19, 2000 was clearly out of time.
Respondent Nash, however, argues that the service to him of the resolution of the City Prosecutor denying his motion for reconsideration was invalid inasmuch as he was represented by counsel. There is no “generally accepted practice” in the service of orders, resolutions, and processes, which allows service upon either the litigant or his lawyer. While as a rule, notice or service made upon a party who is represented by counsel is a nullity, this admits of exceptions, as when the court or tribunal orders service upon the party or when the technical defect is waived.
The above-quoted DOJ Rule expressly provides that service of resolutions may be made to the party or his counsel. In this connection, we had occasion to rule:
A plain reading of Section 2 of DOJ Order No. 223 clearly shows that in preliminary investigations, service can be made upon the party himself or through his counsel. It must be assumed that when the Justice Department crafted the said section, it was done with knowledge of the pertinent rule in the Rules of Court and of jurisprudence interpreting it. The DOJ could have just adopted the rule on service provided for in the Rules of Court, but did not. Instead, it opted to word Section 2 of DOJ Order No. 223 in such a way as to leave no doubt that in preliminary investigations, service of resolutions of public prosecutors could be made upon either the party or his counsel.
WHEREFORE, in view of the foregoing, the petition is GRANTED. The decision of the Court of Appeals in CA G.R. SP No. 66680 is REVERSED and SET ASIDE. The Resolution of the City Prosecutor of Manila, which dismissed the complaint against petitioner for estafa, and the Resolution of the Department of Justice which denied respondent’s appeal, are REINSTATED. No costs.
Davide, Jr., C.J. , (Chairman), Vitug, Carpio and Azcuna, JJ., concur.
 Penned by Associate Justice Eliezer R. de los Santos and concurred in by Associate Justices Cancio C. Garcia and Marina L. Buzon.
 Rollo, p. 42.
 Id., p. 47.
 Id., pp. 26-39, at 38.
 Id., p. 9.
 D.M. Consunji, Inc. v. Esguerra, 328 Phil. 1168, 1180 .
 328 Phil. 1168, 1180 .
 II Reyes, THE REVISED PENAL CODE, 734. 14th ed. .
 Rollo, pp. 42, 46.
 Tam Wing Tak v. Makasiar, G.R. No. 122452, 29 January 2001, 350 SCRA 475, 482.
 Dupasquier v. Court of Appeals, G.R. No. 112089, 24 January 2001, 350 SCRA 146, 153.
 G.R. No. L-77120, 6 April 1987, 149 SCRA 108, 112, cited in D.M. Consunji, Inc. v. Esguerra, supra.
 D.M. Consunji, Inc. v. Esguerra, supra.
 Tam Wing Tak v. Makasiar, supra.
 Tam Wing Tak v. Makasiar, supra.