CONCEPCION CUENCO VDA. DE MANGUERRA and THE HON. RAMON C. CODILLA, JR., Presiding Judge of the Regional Trial Court of Cebu City, Branch 19, Petitioners,
– versus –
RAUL RISOS, SUSANA YONGCO, LEAH ABARQUEZ and ATTY. GAMALIEL D.B. BONJE, Respondents.
G.R. No. 152643, August 28, 2008.
On November 4, 1999, respondents (Risos, et. al.) were charged with Estafa Through Falsification of Public Document before the RTC of Cebu City, Branch 19, through a criminal information dated October 27, 1999, which was subsequently amended on November 18, 1999. The case, arose from the falsification of a deed of real estate mortgage allegedly committed by respondents where they made it appear that petitioner (Concepcion De Manguerra), the owner of the mortgaged property known as the Gorordo property, affixed her signature to the document. Concepcion who was a resident of Cebu City, while on vacation in Manila, was unexpectedly confined at the Makati Medical Center due to upper gastro-intestinal bleeding; and was advised to stay in Manila for further treatment.
The counsel of Concepcion filed a motion to take the latter’s deposition due to her weak physical condition and old age, which limited her freedom of mobility. The RTC of Cebu granted the motion and directed that Concepcions deposition be taken before the Clerk of Court of Makati City. After several motions for change of venue of the deposition-taking, Concepcion’s deposition was finally taken on March 9, 2001 at her residence.
Whether or not Rule 23 of Rules of Court is applicable in the case of Concepcion. Thus, her deposition in her residence is valid?
No. Undoubtedly, the procedure set forth in Rule 119 applies to the case at bar. It is thus required that the conditional examination be made before the court where the case is pending. It is also necessary that the accused be notified, so that he can attend the examination, subject to his right to waive the same after reasonable notice. As to the manner of examination, the Rules mandate that it be conducted in the same manner as an examination during trial, that is, through question and answer.
Unlike an examination of a defense witness which, pursuant to Section 13, Rule 119 of the present Revised Rules of Criminal Procedure, may be taken before any judge, or, if not practicable, a member of the Bar in good standing so designated by the judge in the order, or, if the order be made by a court of superior jurisdiction, before an inferior court to be designated therein, the examination of a witness for the prosecution under Section 15 of the Revised Rules of Criminal Procedure (December 1, 2000) may be done only before the court where the case is pending.