G.R. No. 109036 . July 5, 1995.
Bartolome F. Mercado, petitioner, vs. The Honorable Court of Appeals, Fourth Division, The Honorable Cesar C. Peralejo, Presiding Judge of the Regional Trial Court, Branch 98, Quezon City and the Honorable City Prosecutor of Quezon City, respondents.

FACTS

Petitioner Bartolome Mercado was accused of violating B.P. Blg. 22. He moved to defer his arraignment, claiming he was denied due process as he was not notified of the preliminary investigation due to the private complainant allegedly providing a wrong address for the subpoena. The trial court initially granted a deferment but later denied his motion to cancel the arraignment. Upon his refusal to plead, the court entered a plea of “not guilty” for him. Mercado then filed a petition for prohibition and mandamus with the Court of Appeals to halt the trial, but it was dismissed. The appellate court ruled the remedy improper and found the preliminary investigation valid despite his absence.
The City Prosecutor countered that the subpoena was sent to Mercado’s actual residence, as evidenced by the address on his cash bond’s official receipt, but it was returned unserved. The prosecution maintained that the preliminary investigation established probable cause based on evidence that Mercado issued a check drawn against a closed account.

ISSUE

The issues are: (1) whether a preliminary investigation conducted ex-parte due to lack of notice to the respondent is valid when the omission is allegedly due to the complainant’s deliberate misinformation; and (2) whether the remedy of prohibition is proper following the denial of a motion to suspend arraignment.

RULING

The Supreme Court denied the petition. On the first issue, the Court held that petitioner was not denied his right to a preliminary investigation. A subpoena was duly sent to his acknowledged address, which was the same as that on his cash bond receipt, but it was returned unserved. The purpose of a preliminary investigation is to determine probable cause based on the evidence submitted. The complainant’s evidence showing the issuance of a dishonored check drawn against a closed account sufficiently established probable cause. The Court reiterated that preliminary investigations can be conducted ex-parte if the respondent cannot be subpoenaed or does not appear after due notice, as long as efforts to reach him were made. The absence of the accused is not a condition sine qua non for validity.
On the second issue, the Court ruled that prohibition is generally not available to restrain a criminal prosecution. The exceptions to this rule, as enumerated in Brocka v. Enrile, do not apply to this case. Petitioner’s claims did not demonstrate that his situation fell within any recognized exception, such as a clear absence of a prima facie case or a violation of his constitutional rights. His defenses were more appropriately to be raised during the trial on the merits.