This is a petition  for  certiorari which seeks  to set aside an order of  respondent judge rendered, on August 2, 1955 in criminal  case  No. 29736  entitled People of the Philipines vs. Cef erina Samu, et al., pending in the  Court  of First Instance of Manila, granting the motion of defendants to disqualify  the, counsel for the  private 'prosecution  to intervene in behalf of the offended party.

On October 6,  1954,  petitioners filed  an action  in the Court of First Instance of Pangasinan against respondents Ceferina Samu, Ester Campus alias Rosa Lopez, Carmelita de la Cruz alias Josefina Dizon, and the General Indemnity Co.,  Inc., to  annul certain  contracts entered into by the latter and to recover the damages they suffered as a consequence thereof.   Upon the  initiative of petitioners,  an action  for estafa through falsification of a  private document was filed in the Court of First Instance of Manila against the same  respondents, with  the exception of the insurance  company, who,  upon arraignment, pleaded not guilty  to the charge.

Ester Campus filed a petition in the criminal case praying that the  counsel for the offended parties be prevented from intervening on the ground that the latter have already filed a  civil action for the annulment of the same documents involved in the criminal case and for the recovery of damages resulting therefrom, and as such they  have no right nor authority to assist the  fiscal,in the prosecution of the case.  The trial court found the petition meritorious and disauthorized the private prosecutor to intervene in behalf of the  oil ended parties.  A motion to reconsider the order was filed which was denied in an order entered on August 2, 1955.  To set aside this order, the present  petition for certiorari has been interposed.

It appears that, upon the instance of petitioners, an action for estafa  through falsification of  a private  document was filed by the city fiscal of Manila against respondents Ceferina Samu,  Ester Campus,  Carmelita de la Cruz and Francisco de la Fuente who, upon arraignment, pleaded not guilty to the charge.  It likewise appears that before the  institution of the criminal ease petitioners filed an action against the same respondents for annulment of the same documents involved in the criminal case for damages resulting  from their execution.  The attorneys  for  the offended  parties entered their appearance in the criminal case but, upon petition  of respondent Ester Campus, they were  prevented from doing  so on  the ground  that,  the offended parties  having already instituted  a  civil action, they.have no right nor  authority to be represented in the criminal case.   Has respondent judge abused his discretion in issuing the order of disqualification?

Section  15, Rule 106 provides that "Unless the offended party has Waived the  civil action or  expressly  reserved the, right to institute it after the termination of the criminal case  *  *  * he may intervene, personally  or  by attorney, in the  prosecution of the  offense."  The  wording of the law is clear.  It states that an offended party may intervene, personally or by attorney, in the prosecution of the offense if  he has  not waived the civil action  or  expressly reserved  his  right to  institute  it.  The  reason  of the law in not  permitting the offended  party  to  intervene in the  prosecution of  the offense if he  has waived or reserved his right to institute the civil action is that by such action his interest in the criminal case has disappeared. Its prosecution becomes the  sole function of the public prosecutor.  This is our ruling in the decisions  hitherto rendered in this jurisdiction  interpreting the above provision of our rules of court.

In  People vs. Maceda,  73  Phil., 676, this court said that "the  offended party  may, as of right,  intervene in the prosecution of a criminal  action,  but then only when, from the nature of the offense, he is entitled to indemnity and  his action  therefor has not  by him been waived or expressly reserved."   (Italics supplied,)   The same ruling Was reiterated in People vs. Velez, 77 Phil., 1026 and People vs. Capistrano, 90  Phil.,  823.  In the former  case, we. said,  "The reason  of  the law   in not  permitting the offended party to intervene in the prosecution of a criminal case if  he  has waived his right to institute a civil action arising  from the criminal act, or  has reserved or, a fortiori, already instituted the said civil action, is that he has no special interest in  the  prosecution of the  criminal action."  (Italics supplied.)  And in another case we likewise said that since  the offended  party has already filed a civil  action arising from the criminal act,  "he has no right to intervene in the prosecution of the case"  (People vs. Olavides, 80 Phil., 280; 45 Off. Gaz., 3834).

It therefore appears from the foregoing that an offended party losses his right to intervene in the prosecution of a criminal case, not only when he has waived the civil action or  expressly reserved his right to  institute  it, but) also when he  has actually instituted the civil action even if he has not made the waiver or reservation above adverted to.   This ruling is  further strengthened by Article 33 of the new Civil Code, which provides that "In cases of defamation,'fraud,  and  physical  injuries, a  civil action for damages, entirely separate and  distinct  from the criminal action, may be brought by the injured party", and that such action may proceed independently of the criminal "and for its  determination preponderance of evidence would, suffice. The present case comes within the purview of  this provision.

Petition is  denied,, with costs against petitioners.

Parás,  C. J.,  Bengzon, Padilla,  Reyes, A.,  Labrador, Concepcion, Reyes, J. B. L. and Endencia, JJ., concur.