Page |1

FIRST DIVISION
[G.R. No. 156685. July 27, 2004]
NAZARIO N. MARIFOSQUE, petitioner, vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION

themselves outside the Golden Grace Department

Store to await the arrival of the suspect. Shortly
thereafter, petitioner Marifosque arrived on board
a tricycle. He went inside the store and demanded
the money from Hian Hian Yu Sy and Yu So Pong.
The latter handed to him the marked money,
YNARES-SANTIAGO, J.:
which was wrapped in a newspaper. When
petitioner stepped out of the store, Arsenio Sy
This is a petition for review on certiorari under gave the pre-arranged signal, whereupon the
Rule 45 of the 1997 Rules of Civil Procedure which arresting operatives swooped down upon the
assails the decision dated September 23, 2002 suspect and arrested him.
and the Resolution dated January 3, 2003 of the
Hian Hian Yu Sy testified that petitioner
Sandiganbayan in Criminal Case No. 17030
demanded
the amount of P7,200.00 but she
finding petitioner Nazario Marifosque guilty
bargained
for
P4,800.00 only because that was all
beyond reasonable doubt of the crime of direct
bribery, defined and penalized under the second she had at the time. She proposed that petitioner
paragraph of Article 210 of the Revised Penal return the following morning to pick up the
balance.
Code, as amended.
By way of defense, petitioner Marifosque
Petitioner was charged with direct bribery in
testified
that in the morning of October 13, 1990,
an Information which reads:
a police asset came to his house and reported
that he witnessed a robbery at the gasoline
That on or about October 13, 1990 in Legazpi
City, Philippines and within the jurisdiction of this station of Yu So Pong. Petitioner went to the
gasoline station of Yu So Pong and relayed to him
Honorable Court, the above-named accused a
the information. Thereafter, petitioner and Yu So
public officer being a qualified member of the
Pong proceeded to the police station to report the
Police Force of Legazpi City, now under the
Philippine National Police, taking advantage of his robbery to the desk officer, PFC Jesus Fernandez,
who then dispatched petitioner and a certain Pat.
official/public position and committing the crime
Garcia to conduct an investigation. As they were
herein charged in relation to his office, did then
leaving the police station, the asset approached
and there willfully, unlawfully, and feloniously
demand, obtain and/or receive directly from Yu Su petitioner asking if he could get P350.00 per
cylinder tank as his reward. Petitioner relayed the
Pong[1] and Hian Hian Sy[2] the total amount of
message to Yu So Pong, who said he was
FIVE THOUSAND EIGHT HUNDRED PESOS
amenable if that [was] the only way to recover
(P5,800.00) Philippine Currency in consideration
the cylinders and to apprehend the robbers.
for his recovery from alleged robbers, eighteen
[4]
Based on information furnished by the asset,
Shellane gas filled cylinder/s tanks, to the damage
the police investigators proceeded to the house of
and prejudice of the aforementioned victims in
Edgardo Arnaldo in San Roque Legazpi City, where
the aforesaid amount.
they found the stolen gas tanks. The group loaded
[3]
the gas tanks into the vehicle. Meanwhile, Arnaldo
CONTRARY TO LAW.
arrived. Petitioner did not arrest him at that time
The antecedent facts as culled from the because he promised[5]to lead them to the other
stolen cylinder tanks. The group returned to the
records are as follows:
police station where petitioner made a written
On October 13, 1990 at around 5:00 in the report of the recovery of the gas tanks.
afternoon, Hian Hian Yu Sy and her husband,
Elmer Arnaldo testified that he worked as an
Arsenio Sy, went to the office of Captain Alberto
asset
of
the Legazpi City police
force
and
Salvo, Chief of the Intelligence and Operating
Division stationed at the Criminal Investigation occasionally received rewards from the police for
Service (CIS) in Region 5, to report the robbery of any information of the criminal activities. On
Shellane tanks at the gasoline station of her October 13, 1990 at around 4:00 in the morning,
father, Yu So Pong, and the alleged extortion he went out to buy bread and saw three
attempt by petitioner, Police Sergeant Narciso individuals stealing gas cylinder tanks in the
Marifosque, in exchange for the recovery of the nearby gasoline station. He later visited petitioner
lost items. Captain Salvo and his men set up a and reported to him the robbery. He went back to
plan to entrap the petitioner. Hian Hian Yu Sy his house to feed the chickens. Sometime
prepared the pay-off money in the amount of thereafter, he dropped by the police station to
P4,800.00 and listed down the serial numbers of discuss with petitioner the reward of P350.00 per
the bills. The pay-off was scheduled at 7:00 in the cylinder tank recovered. Petitioner gave him
evening of that day in Golden Grace Department 1,000.00 and told him to return at 6:00 p.m. for
Store which was owned by Yu So Pong. At around the remainder. At 7:00 p.m., he and petitioner
6:15 p.m., Captain Calvo and his men arrived at went to the store of Yu So Pong to collect the
the target area and strategically positioned balance of the reward money. Petitioner went

Page |2

inside the store and Arnaldo, who was left outside,

saw a woman giving him a folded newspaper.
Suddenly,
armed
men
apprehended
the
petitioner, so he ran away.

the demand for money in consideration of the

return/recovery of twenty-one Shellane gas tanks,
between private complainant Yu So Pong and the
accused.

On September 23, 2002, the Sandiganbayan

In the second assigned error, petitioner
rendered a decision convicting petitioner of direct argues that the prosecution failed to establish his
bribery, the dispositive portion of which reads: [6]
guilt beyond reasonable doubt because there was
no competent evidence to prove that the amount
was really intended for him and not for his asset.
WHEREFORE, in view of the foregoing and
He anchors his defense on the fact that: (1) he
considering that the agreed act, which did not
merely relayed to Yu So Pong the assets request
constitute a crime, was executed, judgment is
for a reward money; and (2) Yu So Pong was
hereby rendered finding the accused NAZARIO
agreeable to the request. He further contends
MARIFOSQUE Y NUEZ GUILTY beyond reasonable
that the act of receiving money for the asset is
doubt of the crime of Direct Bribery, defined and
penalized under the second paragraph of Art. 210 not one of those punishable under the law as
direct bribery.
of the Revised Penal Code as amended. The
accused is sentenced to an indeterminate penalty
Petitioner cannot feign innocence and profess
of imprisonment of 3 years 6 months and 5 days
good faith since all the indicia point to his guilt
of Prision Correccional medium and maximum
and malicious intent.
periods as the Minimum and 7 years, 8 months
and 9 days of Prision Mayor minimum and
First, petitioner did not introduce his asset or
medium periods as the Maximum considering that mention his name to Yu So Pong or his daughter
there is no mitigating nor aggravating
at the time of the illegal transaction. His claim
circumstance and a fine in the amount of THREE
that he previously gave P1,000.00 to his asset,
THOUSAND PESOS (P3,000.00). The accused shall which purportedly represented a partial payment
also suffer the penalty of special temporary
of the reward money, was not corroborated by his
disqualification.
asset. When he was arrested and interrogated
at Camp Ibalon, he made no attempt to present
his asset to explain and justify his receipt of the
SO ORDERED.[7]
reward money. Instead, he accepted his arrest
His motion for reconsideration having been and investigation with an air of resignation, which
denied, petitioner interposes the present appeal is characteristic of a culprit who is caught redhanded. Captain Calvo, one of the arresting CIS
raising the following issues:
officers, testified that petitioner attempted to give
I
back the money to Yu So Pong when they were
about to arrest him.[9] This was a clear showing
THE ACT OF PETITIONER RECEIPT OF THE SUMS
that he was well aware of the illegality of his
OF MONEY FOR DELIVERY TO HIS ASSET DOES
transaction. Had he been engaged in a legitimate
NOT CONSITUTE AN OFFENSE DEFINED AND
deal, he would have faced courageously the
PENALIZED UNDER SECOND PARAGRAPH OF
arresting officers and indignantly protested the
ARTICLE 210 OF THE REVISED PENAL CODE, AS
violation of his person, which is the normal
AMENDED.
reaction of an innocent man. Instead, he meekly
submitted to the indignity of arrest and went
II
along the eventual investigation with the docility
of a man at a loss for a satisfactory explanation.
THE HONORABLE SANDIGANBAYAN COMMITTED
Second, petitioners solicitous and overly
GRAVE ABUSE OF DISCRETION AMOUNTING TO
eager conduct in pursuing the robbery incident
LACK OF JURISDICTION IN FINDING THE
betrays an intention not altogether altruistic. On
PETITIONER GUILTY BEYOND REASONABLE DOUBT
the contrary, it denotes a corrupt desire on his
OF THE CRIME OF DIRECT BRIBERY. [8]
part to obtain pecuniary benefits from an illegal
transaction. At the time petitioner was notified by
In the first assigned error, petitioner contends
his asset of the robbery incident, he was no
that the testimonies of the prosecution witnesses
longer on duty, having been assigned to the night
do not demonstrate with certainty that the receipt
shift the day before. He was too overzealous to
of the alleged bribe money constitutes the act
meet with Yu So Pong although the case was
punishable by the offense as defined by the
already assigned to another police investigator.
Revised Penal Code. He draws attention to the
His justification that he wanted to encourage the
following findings of fact by the appellate court,
victim to pursue the case against the robbers
namely: (1) that he was not the one who asked for
rings hollow and untrue. It is clearly an
reward from private complainant Yu So Pong but
afterthought. As shown in the testimony of
the asset; and (2) that Hian Hian Yu Sy had no
prosecution witness Hian Hian Yu Sy, petitioner
direct knowledge of the alleged transaction, i.e.,

Page |3

met with Yu So Pong for no apparent reason than

to demand money. There was no mention of any
attempt by him to investigate, much less
encourage the victims to file charges against the
malefactors.
More
telling
is
petitioners
persistence in obtaining the monetary reward for
the asset although the latter was no longer
complaining about the P1,000.00 he supposedly
received earlier, thus:
Pros. Agcaoili:
Since the asset was not complaining at
the time, you should not have gone
back anymore to Yu So Pong?
Accused Marifosque:
Why would I not go back? My purpose was
to encourage him to pursue the
matter. If he would not pursue this
matter, then we would be the
laughing stock of the thieves we
arrested and then we cannot charge
them.
Q. So Mr. Witness, you went to Yu So Pong
after you received the P1,000.00
without any intention to receive
additional amount for the asset, am I
right?

A. For that particular case alone, Mr. Yu so

Pong gave me something and I gave it
to my asset.
xxxxxxxxx
Pros. Agcaoili
In fact, Mr. Witness, you said that these
tips were just given as an incentive?
A I would be the one to give the incentives
to my asset. But in that particular
instance, the P1,000.00 which Mr. Yu
So Pong gave me, I turned it over to
my own asset.
Q To your own assessment, Mr. Witness, is
P1,000.00 not enough to serve as an
incentive to your asset?
A I do not know whether P1,000.00 is
enough or not. The fact, is, that was
the amount I got from Yu So Pong
which I gave to my asset.
PJ:
Was the asset complaining that was not
enough?
A. No, Your Honor.[11]

Third, the conduct of the petitioner during the

recovery of the stolen articles leaves much to be
desired. He did not apprehend Edgardo Arnaldo or
invite him for investigation although the cylinder
tanks were found in his possession. His flimsy
excuse that the latter promised to deliver
additional cylinder tanks is unworthy of credence
While petitioner supposedly supports the considering that, as a police officer with years of
reward system, yet he denied that he previously experience, he should have known that the proper
gave incentives to the assets for the recovery of action, under the circumstances, was to at least
invite him to the police precinct for investigation.
stolen items, to wit:
Curiously, the prime suspect Edgardo Arnaldo
PJ:
turned out to be the brother of petitioners police
asset who, we recall, directed the police officers
Sometimes you would ask for reward
to the location of the stashed articles. This
for your assets?
strange coincidence may well indicate a
A: I myself voluntarily give them a reward.
conspiracy between the petitioner and the thieves
to steal from the victim and later cash in on the
Q: That is not the question. The question
recovery of the lost items.
is, in the past when you would recover
stolen articles, would you ask the
In the final analysis, this case boils down to an
owner of the articles to give some
issue of credibility. In this regard, the prosecution
incentive or tip to your assets?
witnesses gave clear and straightforward
testimonies. The Sandiganbayan did not err in
A: That has not happened, your Honor.
giving full weight and credence to their version of
the events. Petitioners conviction must be
PJ:
affirmed.
Next question.
The crime of direct bribery as defined in
Pros. Agcaoili:
Article 210 of the Revised Penal Code consists of
the following elements: (1) that the accused is a
And, in fact, Mr. Witness, you did not
public officer; (2) that he received directly or
give any incentive to your asset on
through another some gift or present, offer or
that incident that happened in the
promise; (3) that such gift, present or promise has
house of Yu So Pong which is the
been given in consideration of his commission of
subject matter of this case?
A: No, maam. That was not the purpose.
In fact, Yu So Pong had told me earlier
to see him again in order to prepare
for the cash and to see if an additional
amount would be needed for my
asset.[10]

Page |4

some crime, or any act not constituting a crime,

or to refrain from doing something which it is his
official duty to do; and (4) that the crime or act
relates to the exercise of his functions as a public
officer.
There is no question that petitioner was a
public officer within the contemplation of Article
203 of the Revised Penal Code, which includes all
persons who, by direct provision of law, popular
election or appointment by competent authority,
shall take part in the performance of public
functions in the Philippine Government, or shall
perform in said government or any of its
branches, public duties as an employee, agent or
subordinate official or any rank or class. At the
time of the incident, petitioner was a police
sergeant assigned to the Legazpi City Police
Station. He directly received the bribe money
from Yu So Pong and his daughter Hian Hian Yu Sy
in exchange for the recovery of the stolen cylinder
tanks, which was an act not constituting a crime
within the meaning of Article 210 of the Revised
Penal Code. The act of receiving money was
connected with his duty as a police officer.

While the Sandiganbayan imposed the correct

prison term in applying the Indeterminate
Sentence Law, the amount of the fine is
erroneous. Paragraph 1 of Article 210 of the
Revised Penal Code, in relation to paragraph 2
thereof, provides that if the act does not
constitute a crime, the fine shall not be less than
three
times
the
value
of
the
amount
received. Evidence shows that petitioner received
an aggregate amount of P5,800.00. [12] He should
therefore be ordered to pay a fine not less than 3
times its value. Accordingly, a fine of P18,000.00
is deemed reasonable.
WHEREFORE, in view of the foregoing, the
petition is DENIED. The decision of the
Sandiganbayan in Criminal Case No. 17030,
finding petitioner guilty beyond reasonable doubt
of the crime of Direct Bribery and imposing upon
him the indeterminate prison term of 3 years, 6
months, and 5 days of prision correccional, as
minimum, to 7 years, 8 months, and 9 days
of prision mayor, as maximum, is AFFIRMED with
the MODIFICATION that the fine is increased to
P18,000.00.

The instant case falls within the second

In addition, petitioner shall suffer the penalty
paragraph of Article 210 of the Revised Penal of special temporary disqualification.
Code, which is quoted hereunder:
SO ORDERED.
Art. 210. Direct Bribery. Any public officer who
shall agree to perform an act constituting a crime,
FIRST DIVISION
in connection with the performance of his official
[G.R. No. 136462. September 19, 2002.]
duties, in consideration of any offer, promise, gift
PABLO N. QUION, Petitioner, v. PEOPLE OF
or present received by such officer, personally or
THE PHILIPPINES, Respondent.
through the mediation of another, shall suffer the
DECISION
penalty of prision mayor in its minimum and
medium periods and a fine of not less than three
YNARES-SANTIAGO, J.:
times the value of the gift, in addition to the
penalty corresponding to the crime agreed upon,
This petition for review seeks to set aside the
if the same shall have been committed.
September 21, 1998 decision and the December
4, 1998 resolution of the Sandiganbayan 1 in
Criminal Case No. 16279, convicting petitioner
If the gift was accepted by the officer in
Pablo N. Quion of the crime of malversation of
consideration of the execution of an act which
public property as defined and penalized under
does not constitute a crime, and the officer
Article 217 of the Revised Penal Code.chanrob1es
executed said act, he shall suffer the same
penalty provided in the preceding paragraph; and virtua1 1aw 1ibrary
if said act shall not have been accomplished, the
The Information filed against accused-appellant
officer shall suffer the penalties of prision
correccional in its medium period and a fine of not reads:chanrob1es virtual 1aw library
less than twice the value of such gift.
That on or about March 14, 1988 or subsequent
thereto, in Calinog, Iloilo, Philippines and within
If the object for which the gift was received or
the jurisdiction of this Honorable Court, the
promised was to make the public officer refrain
above-named accused, a public officer, being
from doing something which it was his official
duty to do, he shall suffer the penalties of prision then the Station Commander of the Calinog, Iloilo
PC/INP, and who by reason of the duties of his
correccional in its maximum period to prision
office is accountable for public properties that
mayor in its minimum period and a fine not less
come to his possession and control, received in
than three times the value of the gift.
his official capacity the following firearms: two (2)
super caliber .38 pistol and their magazines, with
In addition to the penalties provided in the
Serial Nos. 310136 and 310150, valued at
preceding paragraphs, the culprit shall suffer the
P5,500.00 per pistol, with total value of
penalty of special temporary disqualification.

Page |5

P11,000.00; and one (1) 12 gauge shotgun, with

Serial No. 242446 valued at P4,000.00, and with
grave abuse of confidence, did then and there
willfully, unlawfully and feloniously apply and
convert to his personal use and benefit said
firearms to the damage and prejudice of the
government in the total amount of Fifteen
Thousand Pesos (P15,000.00), Philippine Currency.
CONTRARY TO LAW. 2
On May 13, 1991, petitioner pleaded not guilty.
Petitioner, however, failed to appear when the
case was set for pre-trial and trial from July 18,
1991 to February 23, 1993, allegedly due to
hypertension. 3

On March 15, 1988, Police Sergeant Emilio

Aviador assumed office as Station Commander of
the Calinog, Iloilo, PC-INP, vice petitioner who was
transferred to the 322nd Philippine Constabulary
Co., at Camp Tirador, Iloilo. After an inventory of
the firearms of the Calinog, Iloilo Police Station, it
was discovered that petitioner did not turn over
the firearms issued to him. Thus, Police Sergeant
Aviador sent a radio message to petitioner
demanding the return of the unaccounted
firearms. Police Sergeant Aviador likewise sought
the help of the Provincial Commander/Police
Superintendent of the Iloilo PC-INP for the return
of said firearms and ammunition. 6

Subsequently, petitioner surrendered one (1) unit

M16 armalite rifle with Serial No. 157840 and one
The facts as established by the prosecution:
(1) pistol cal. 38 with Serial No. 310151 to the
Petitioner Police Sergeant Pablo N. Quion was the 322nd PC Co., at Camp Tirador, Iloilo, which in
Station Commander of Calinog, Iloilo, Philippine
turn delivered said firearms to the Calinog, Iloilo
Constabulary-Integrated National Police (PC-INP), Police Station. On March 17, 1989, Police Sergeant
now Philippine National Police (PNP), from
Aviador recovered the shotgun with Serial No.
February 5, 1987 to March 14, 1988. During his
242446 from a certain Rudy Penuela, an alleged
incumbency and by reason of his functions as
asset or informer of petitioner when he was still
Station Commander, he was issued the following
the Station Commander of Calinog. 7
firearms and ammunitions under Memorandum
Receipts duly signed by him, to wit:chanrob1es
Petitioner failed to return the two remaining .38
virtual 1aw library
caliber pistols with Serial Nos. 310136 and
310150 despite demands of the Calinog Police
Memorandum Receipt dated February 20,
Station. The value of the unaccounted firearms
1987:chanrob1es virtual 1aw library
per the updated cost valuation dated July 30,
1984 of the Ministry of National Defense,
1 each Pistol Star Cal. 38
amounted to P5,500.00 each, or a total of
P11,000.00. 8
Sn 310150
After the prosecution rested its case, the
1 each Mag
Sandiganbayan issued an order directing
petitioner to present evidence on July 22 and 23,
1 each Pistol Star Cal. 38
1983. Petitioner again failed to appear on the
scheduled dates despite notice. Hence, the
Sn310151
Sandiganbayan considered his absence a waiver
of his right to present evidence. Upon motion of
6 Rounds Ammos Cal 38 w/ mag
the prosecution, the case was submitted for
decision. Petitioner filed a motion for
1 each Pistol Star Cal. 38
reconsideration claiming that he was denied due
process, however, the same was denied by the
[Sn] 310136
Sandiganbayan. 9
6 Rounds Ammos Cal. 38 w/ mag
1 each Rifle M16 armalite Cal. 5.45
Sn 157840
40 Rounds Ammos Cal. 5.56 4
Memorandum Receipt dated April 24,
1987:chanrob1es virtual 1aw library
1 each Shotgun Squire Bingham 12 gauge
Sn 242446 5

Hence, the instant petition for certiorari and

prohibition docketed as G.R. No. 113908.
Petitioner contended, inter alia, that he was
denied due process of law and that the
information filed against him does not charge an
offense. The petition was denied for lack of merit.
10
On August 7, 1998, the Sandiganbayan rendered
judgment in Criminal Case No. 16279, the
dispositive portion of which reads:chanrob1es
virtual 1aw library
WHEREFORE, judgment is hereby rendered,
finding the accused guilty beyond reasonable

Page |6

doubt of the crime of malversation of public

properties, more particularly of two .38 Cal.
Pistols, with a total value of P11,000.00; and the
Court hereby sentences the accused to suffer an
indeterminate sentence of imprisonment of six (6)
years and one (1) day of prision mayor, as
minimum, to ten (10) years and one (1) day of
reclusion temporal, as maximum, to pay a fine of
P11,000.00 and also to suffer the penalty of
perpetual special disqualification; and to pay the
costs.
SO ORDERED. 11

abandonment or negligence, shall permit any

other person to take such public funds or
property, wholly or partially, or shall otherwise be
guilty of the misappropriation or malversation of
such funds or property, . . .
x

The failure of the public officer to have duly

forthcoming such public funds or property, upon
demand by a duly authorized officer, shall be
prima facie evidence that he has put such missing
funds or property to personal use.

Petitioners motion for reconsideration was denied

The elements of malversation, essential for the
and the decretal portion of the August 7, 1998
conviction of an accused under the above penal
decision was amended with respect to the
provision are:chanrob1es virtual 1aw library
penalty, thus
WHEREFORE, judgment is hereby rendered,
finding the accused guilty, beyond reasonable
doubt, of the crime of malversation of public
properties, more particularly of two .38 Cal.
pistols, with a total value of P11,000.00; and the
Court hereby sentences the accused to suffer an
indeterminate sentence of imprisonment of six (6)
years and one (1) day of prision mayor, as
minimum, to twelve (12) years and one (1) day of
reclusion temporal, as maximum, to pay a fine of
P11,000.00, and also to suffer the penalty of
perpetual special disqualification and to pay the
costs.
SO ORDERED. 12
Hence, the instant petition on the following
grounds:chanrob1es virtual 1aw library
I
THE SANDIGANBAYAN PATENTLY ERRED IN
HOLDING THAT PETITIONER IS AN ACCOUNTABLE
PUBLIC OFFICER.
II
THE SANDIGANBAYAN PATENTLY ERRED IN
FINDING PETITIONER GUILTY OF MALVERSATION
UNDER ARTICLE 217 OF THE REVISED PENAL
CODE. 13

1. That the offender is a public officer;

2. That he has the custody or control of funds or
property by reason of the duties of his office;
3. That the funds or property are public funds or
property for which he is accountable; and
4. That he appropriated, took, misappropriated or
consented or through abandonment or
negligence, permitted another person to take
them. 14
Petitioner does not deny that he received the
firearms in question by reason of his office as
Station Commander of the Calinog, Iloilo PC-INP,
and he failed to return them upon the expiration
of his term and despite demand of the new
Station Commander. He, however, argues that he
cannot be convicted of malversation of public
property because he is not an "accountable
officer" within the contemplation of Article 217.
Citing the Administrative Code of 1987, 15
petitioner alleges that "only public officers whose
duties require possession or custody of
government public funds and are bonded, are
considered public accountable officers." 16
The contentions lack merit.

An accountable public officer, within the purview

of Article 217 of the Revised Penal Code, is one
who has custody or control of public funds or
property by reason of the duties of his office. To
The crime of malversation of public funds or
be liable for malversation, an accountable officer
property is defined as follows:chanrob1es virtual
need not be a bonded official. The name or
1aw library
relative importance of the office or employment is
not the controlling factor. What is decisive is the
ART. 217. Malversation of public funds or property. nature of the duties that he performs and that as
Presumption of malversation. Any public
part of, and by reason of said duties, he receives
officer who, by reason of the duties of his office, is public money or property which he is bound to
accountable for public funds or property, shall
account. 17
appropriate the same, or shall take or
misappropriate or shall consent, or through
In the case at bar, the delivery to petitioner of the

Page |7

firearms belonging to the Government, by reason

of his office as Station Commander of Calinog,
Iloilo, PC-INP, necessarily entailed the obligation
on his part to safely keep the firearms, use them
for the purposes for which they were entrusted to
him, and to return them to the proper authority at
the termination of his tenure as commander, or
on demand by the owner, the duty to account for
said firearms. 18 Thus, in Felicilda v. Grospe, 19
the Court held a police officer accountable for the
firearms issued to him and consequently
convicted him for malversation of public property
when he failed to produce said firearms upon
demand by the proper authority.

WHEREFORE, in view of all the foregoing, the

resolution of the Sandiganbayan in Criminal Case
No. 16279, convicting petitioner Pablo N. Quion
of the crime of malversation of public property
and sentencing him to suffer the indeterminate
penalty of imprisonment ranging from six (6)
years and one (1) day of prision mayor, as
minimum, to twelve (12) years and one (1) day of
reclusion temporal, as maximum, as well as the
penalty of perpetual special disqualification; and
ordering him to pay a fine of P11,000.00, is
AFFIRMED.chanrob1es virtua1 1aw 1ibrary

Article 217 of the Revised Penal Code is designed

to protect the government and to penalize erring
public officials and conspiring private individuals
responsible for the loss of public funds and
property by reason of corrupt motives or neglect
or disregard of duty. Its all encompassing
provision cannot be limited by petitioners absurd
interpretation of the provisions of the
Administrative Code restricting the application
thereof only to government funds and to bonded
public officials.

Davide, Jr., C.J., Vitug, and Carpio, JJ., concur.

SECOND DIVISION
[G.R. No. 132926. July 20, 2001]
ELVIRA AGULLO, petitioner,
vs. SANDIGANBAYAN and PEOPLE OF THE
PHILIPPINES, respondents.
DECISION
BUENA, J.:

Under Article 217 of the Code, the failure of the

public officer to have duly forthcoming such
public funds or property, upon demand by a duly
authorized officer, shall be prima facie evidence
that he has put such missing funds or property to
personal use. Considering that petitioner failed to
adduce evidence on why he failed to produce,
after the expiration of his term and despite lawful
demand, the two .38 caliber pistols with Serial
Nos. 310136 and 310150 issued to him by reason
of his duties as Station Commander of the
Calinog, Iloilo, PC-INP, the Sandiganbayan
correctly convicted him of malversation of public
property.

SO ORDERED.

Charged with, tried and convicted in Criminal

Case No. 13579 for malversation of public funds,
herein
petitioner
Elvira
Agullo,
erstwhile
Disbursing Officer of the then Ministry of Public
Works and Highways (MPWH), Regional Office No.
VIII, Candahug, Palo, Leyte, now comes before the
High Court to assail the Decision [1] of the
Sandiganbayan promulgated on 16 March 1992,
and its Resolution dated 11 March 1998, denying
petitioners
motion
for
reconsideration[2] but
reducing the penalty imposed on petitioner as
follows:

WHEREFORE, the Court finds the accused Elvira

S. Agullo guilty beyond reasonable doubt of the
crime of Malversation of Public Funds, defined and
penalized under Article 217, paragraph 4 of the
Revised Penal Code. [There being neither
mitigating nor aggravating circumstances, no
Regarding the imposable penalty, the
Sandiganbayan correctly amended the maximum evidence having been adduced respecting partial
or full restitution of the amount
period of petitioners indeterminate penalty from
malversed,] Considering the absence of any
ten (10) years and one (1) day of reclusion
aggravating circumstances and her full
temporal to twelve (12) years and one (1) day of
reclusion temporal. Under paragraph (3) of Article restitution by salary deduction, the accused
Elvira S. Agullo should be, as she is, hereby
217, the penalty for malversation where the
amount involved is more than P6,000.00 but less sentenced to the indeterminate penalty of, from
than P12,000.00, is prision mayor in its maximum TEN (10) YEARS and ONE (1) DAY of PRISION
MAYOR, as MINIMUM; to [EIGHTEEN (18) YEARS,
period to reclusion temporal in its minimum
EIGHT (8) MONTHS AND ONE (1) DAY OF
period. Since there are no modifying
RECLUSION TEMPORAL] SEVENTEEN (17)
circumstances, penalty shall be imposed in its
YEARS, FOUR (4) MONTHS and ONE (1) DAY
medium period, i.e., within the range of eleven
of RECLUSION TEMPORAL, AS
(11) years, six (6) months and twenty-one (21)
days to thirteen (13) years, one (1) month and ten MAXIMUM, with the accessory penalties of the
law; to pay a fine in the sum of P26,404.26
(10) days. The minimum period of the
indeterminate penalty shall be within the range of without subsidiary imprisonment in case of
insolvency; to suffer the penalty of Perpetual
six (6) years and one (1) day to ten (10) years of
prision mayor, the penalty next lower in degree to Special Disqualification and to pay the costs.
(Emphasis ours)
the prescribed penalty.

Page |8

In an information[3] dated 30 September 1988,

herein petitioner was charged with the crime of
malversation of public funds, committed as
follows:
That on or about the period October 22, 1985 to
July 14, 1986, inclusive or within said dates in the
Municipality of Palo, Province of Leyte, Philippines,
and within the jurisdiction of the Honorable Court,
the above-named accused, being then the
disbursing officer of then Ministry of Public Works
and Highways, Regional Office No. VIII, Candahug,
Palo, Leyte, charged with the official custody of
public funds thus paid, collected and received by
her in her official capacity, and by reason of which
duties she is accountable thereof, taking
advantage of her official position, did then and
there wilfully, unlawfully and feloniously take,
convert and misappropriate for her own personal
use and benefit the public funds she had in her
possession in the amount of Twenty Six Thousand
Four Hundred Four Pesos and 26/100
(P26,404.26), belonging to the government of
the Republic of the Philippines, to the damage and
prejudice of the latter in the aforestated amount.

accused has likewise informed the Court that prior

to the incident on October 22, 1985, she had
been audited on May 27, 1985 and, after the
incident, on December 23, 1985 although
she concedes she was also audited on July
14, 1986.
Considering that all the documents necessary for
the defense of the accused are still to be
organized, Atty. Manzano is given ten (10) days
from today within which to prepare a proposal for
stipulations of facts and, if that is not possible, at
least a complete outline of his case together with
the marking of the documents he wishes to
present which the prosecution might not admit as
to the substance thereof though the genuineness
of the documents presented might be conceded.
With the above, the prosecution may now rest its
case and the presentation of the evidence for the
defense may take place on April 5 and 6, and May
17 and 18, 1990, at 8:00 o clock in the morning
and 2:00 o clock in the afternoon.
The setting for tomorrow is cancelled.

Contrary to law.

SO ORDERED. (Emphasis ours)

Upon arraignment, herein petitioner Agullo,

assisted by counsel de officio Antonio Manzano,
pleaded not guilty[4] to the charge, after which the
Sandiganbayan conducted a pre-trial on 11
February 1990 and issued the following Pre-Trial
Order:[5]

As borne by the records, the charge of

malversation against petitioner germinated from
an audit conducted on 14 July 1986 by Ignacio
Gerez, Auditing Examiner III, as a result of which a
P26,404.26 cash shortage was discovered on
petitioners accountability. On the same date,
Gerez informed petitioner of said finding of cash
shortage and required the latter, through a letter
of demand,[6] to produce immediately the missing
funds. Further, petitioner was required to submit
within 72 hours from receipt a written explanation
of the cash shortage.

When this case was called for pre-trial, the

accused personally and through her counsel Atty.
Antonio Manzano of the CLAO readily entered
into stipulations insofar as her official position
in government as well as the fact of audit of
her accounts are concerned, including therewith
the admission that, in all respects the Cash
Production Notice and the Examination of her
Cash and Accounts which the government marked
as Exhibit A was faithful reproduction of the
original, and insofar as the contents thereof are
concerned, are correct. The accused likewise
admitted that she had received a letter of
demand, said letter dated July 14, 1986 marked
as exhibit B. With this the accused stated that
her defense was premised on her having
suffered a stroke on October 22, 1985 as a
result of which the amount subject of the
shortage found in her audit had been lost.

In a letter[7] dated 25 August 1986, addressed

to the Resident Auditor of the MPWH, petitioner
complied with the directive by explaining that the
cash shortage was, in effect, due to a fortuitous
event where the amount could have been
stolen/taken by somebody on the day she
suffered a stroke on 22 October 1985, near the
corner of Juan Luna Street and Imelda Avenue,
Tacloban City.

In the course of the pre-trial, petitioner Agullo

conceded the fact of audit and admitted [8] the
findings in the Report of Cash Examination and
the facts set forth in the Letter of Demand. In
effect, she admitted the fact of shortage in the
The accused also indicated that not only had she
amount
stated
in
the
Information.
immediately replied to the letter by various
Notwithstanding, petitioner Agullo, at all stages of
communications by her or in her behalf protesting the criminal indictment, persistently professed her
the witholding of various amounts due her by way innocence of the charge and categorically denied
of salaries on the premise that the loss of the
having malversed or converted the public funds in
amount subject matter of the Information was not question for her own personal use or benefit. [9]
chargeable to her as a personal liability. The

Page |9

With petitioners admission of the fact of cash

shortage, the prosecution then rested its case.
[10]
For its part, the defense, in its bid to overturn
the presumption of malversation and shatter the
prima facie evidence of conversion, offered the
testimony of the following witnesses: petitioner
Elvira Agullo; Rene Briones Austero, Cashier III of
the Department of Public Works and Highways
(DPWH), Region VIII; and Engracia CamposanoCamaoy, Barangay Captain of Hinabuyan,
Dagame, Leyte.

Exhibit 8 Letter of Accused dated 26

November 1987;

During trial, the defense offered to present

the testimony of witness Austero for the purpose
of
proving
that
an
amount
equal
[11]
to P26,722.05
was withheld from the salary
and other compensation of petitioner Agullo.
Further, the defense offered the testimony of
witness Barangay Captain Camaoy for the
purpose of establishing that the accused suffered
a heart attack (stroke) on October 22, 1985; that
on June 30, 1986, the accused informed her that
the accused lost the money for which she (was
being) subjected to criminal prosecution x x x;
and that between October 22, 1985 and June 30,
1986, there had been no demand upon the
accused to produce the money for which she was
declared short.[12]

Exhibit 12 Certification by Mauricio

Pacatang;

Additionally, the defense presented the

following documentary evidence,[13] all of which
were admitted by the Sandiganbayan:

Exhibit 17 Report of Injury signed and

approved by Pablo P. Burgos, Regional
Engineering Coordinator and Head of Office;

Exhibit 1 - Letter dated 25 August 1986 by

accused to the Resident Auditor MPWH,
Regional Office No. 8, Candahug, Palo, Leyte;
Exhibit 2 - Letter dated 22 August 1987 by
accused to Engr. Alfredo P. Torres, Regional
Director;

Exhibit 9 Affidavit of accused Elvira Agullo;

Exhibit 10- Affidavit of witness Engracia
Camaoy;
Exhibit 11 Letter-Request dated 04 May 1988
of accused to the Regional Director;

Exhibit 13 Protest of accused against the

appointment of Sylvia de la Rosa;
Exhibit 14- Letter dated 25 February 1987 to
the Manager, Employees Compensation
Department, GSIS, Metro Manila;
Exhibit 15 Initial Approval of the Employees
Compensation Department, GSIS;
Exhibit 16 Hospitalization Claim for payment
of accused;

Exhibit 18 Certification issued by PNB

Tacloban, thru its Asst. Manager B.L. Telmo;
Exhibit 19 Memorandum to accused
dated 02 April 1984;
Exhibit 20 Memorandum dated 05 May 1990.

At the witness stand, petitioner Agullo

unrelentingly maintained her innocence and
vehemently denied the accusation against her.
Thus, according to petitioner, in the morning of 21
Exhibit 3-A Verified Medical Certificate dated October 1985, she reported for work and prepared
an inventory of her cash accountability [14] as
19 January 1986, issued by Dr. Juan Abando,
Disbursing Officer[15] of the MPWH Regional Office,
notarized on page 02;
Candahug, Palo, Leyte. On the same day,
Exhibit 4- Letter dated 26 December 1986 by petitioner received around thirteen (13) checks in
the form of cash advances in her name
accused to the Regional Director;
totaling P26,076.87,[16] which
amount
represented salaries of MPWH officials and
Exhibit 5 Letter dated 19 February 1987 to
employees.
the Regional Director by Atty. Eric T. De Veyra;
Around 1:30 PM, petitioner, together with
Exhibit 6 Letter dated 15 April 1987 by
Benjamin Veridiano, driver of MPWH Finance and
accused to the Regional Director;
Management Division, proceeded to the Philippine
National Bank (PNB) Tacloban City Branch, on
Exhibit 7 Letter dated 01 September 1987 of board the MPWH official vehicle, to encash the
aforesaid checks. Upon encashment of the
Director Alfredo Torres of DPWH to the
checks, petitioner then put the money inside a
Regional Director COA;
PNB envelope which she further placed in her
bag. From the PNB, petitioner-- who boarded the
Exhibit 3- Medical Certificate dated 05
August 1986, issued by Dr. Juan T. Abando,
M.D., St. Pauls Hospital, Tacloban City;

P a g e | 10

official vehicle driven by Veridiano for the purpose

of proceeding further to the MPWH Regional
Officefelt dizziness, chest pain and nausea. As a
result of her condition, petitioner Agullo requested
driver Veridiano to drop her off at petitioners
residence located at 109 Juan Luna Street-- about
half a kilometer away from the PNB.[17]
In the morning of the following day, 22
October 1985, petitioner upon realizing that it was
then the third-week payday of the month, and
burdened with the thought that she failed to give
the salary of the permanent employees strove to
report for work despite her weak physical
condition. Petitioner Agullo testified that she left
her residence alone and brought with her the bag
containing the money which she encashed the
previous day from the PNB.[18]
Upon leaving the house with the money inside
her bag, she walked the stretch of Juan Luna
Street and was able to reach almost the corner of
Juan Luna and Imelda Avenue[19] a distance of
around
50
meters
away
from
her
residence[20] when she was stricken with deep
chest pain[21] and experienced dizziness; her
vision blurred and the right part of (her) body
(became) heavy to the point that she could not
move anymore. At this point, she collapsed and
lost consciousness.[22]
In the afternoon of the same day, she found
herself in a hospital bed of St. Pauls Hospital
located about a block away from petitioners
residence. Upon inquiry, she was informed that a
certain Metro Tacloban Aide by the name of Teresa
Lorenzo came to her rescue when she fainted,
assisted in rushing her to the hospital, and
informed her family about Agullos dire condition
and the unfortunate event that befell her.
[23]
Petitioner was confined in St. Pauls Hospital for
over a week from 22 October 1985 to 01
November 1985[24] - under the care of her
attending physician, Dr. Juan Abando, who issued
the corresponding Medical Certificate pregnant
with the following findings:
X X X Hypertension complicated with Cerebro
Vascular Accident (CVA), Rt. Hemiparesis and
Urinary Infection.
Condition started apparently 20 hrs. before
admission as moderate headache and dizziness,
associated with blurring of vision and nausea.
Fifteen hrs. prior to admission, she felt weakness
of her right half of her body and slurring of
speech. Had history of high blood pressure taken
last April 1985. B/P= 190/120. On admission B/P=
was 230/120; PR= 83/min.; RR= 20/min.
Pertinent findings: conscious, coherent, slurred
speech, rt. Hemiplegia.
Diagnosis: = Malignant hypertension.

= CVA with Right Hemiplegia.

= Urinary Tract Infection.
As to petitioners medical history and physical
condition after her stroke, the Sandiganbayan, in
its decision, observed from the records:
X X X In the past, the accused had likewise
suffered a stroke and had undergone medical
treatment. A medical certificate, marked as
Exhibits 3 and 3-A, attest(s) to the fact that she
had a history of high blood pressure and had been
undergoing treatment for the said malady. Since
her sudden breakdown on October 22, 1985, the
right part of her body became paralyzed and her
speech has been impaired. She was advised by
her doctor to undergo physical therapy and to
take medicine regularly. She was advised not to
report for work during such time that she was
under recuperation. Only on February 2, 1986 did
she start to report for work, although at irregular
intervals, until the date of the audit, July 14, 1986.
Striking down the defense as incredible and
without basis, the Sandiganbayan rendered its
assailed decision, convicting petitioner Agullo of
the crime of malversation of public funds,
ratiocinating principally that no evidence has
been presented linking the loss of the
government funds with the alleged sudden
heart attack of the accused (herein
petitioner).
We do not agree.
By and large, the pieces of evidence
presented against petitioner in this case do not
fulfill the test of moral certainty and may not be
deemed sufficient to support a conviction.
[25]
Records reveal that evidence for the
prosecution consisted solely of the Report of
Cash Examination,[26] dated 14 July 1986, which
was presented by the prosecution to prove the
cash shortage in the amount of P26,404.26,
on petitioner Agullos accountability as Disbursing
Officer of the then MPWH. Likewise, the
prosecution
presented
the Letter
of
Demand[27] dated 14 July 1986 signed by Auditing
Examiner III Ignacio Gerez.
Aside from the aforementioned documents,
the prosecution opted not to present a
single witness to buttress its bid for conviction
and relied
merely
on
the prima
facie
evidence of conversion or presumption of
malversation under Article 217, paragraph (4) of
the Revised Penal Code, to wit:
ART. 217. Malversation of public funds or
propertyPresumption of malversation

P a g e | 11

X X X The failure of a public officer to have

duly forthcoming any public funds or property
with which he is chargeable, upon demand by
any duly authorized officer, shall be prima
facie evidence that he has put such
missing funds or property to personal
uses.
Stated otherwise, the evidence for the
prosecution, upon which the Sandiganbayan
riveted its judgment of conviction, was limited to
documents to wit, the Report of Cash Examination
and Letter of Demand. As could be readily
gleaned from the assailed decision, the verdict
adjudging herein petitioner guilty of the crime of
malversation was anchored solely on the
presumption
provided
under
Article
217,
paragraph 4 of the Revised Penal Code,
which prima facie evidence, in turn, was rooted
loosely on the documentary evidence presented
by the prosecution, to wit; the Report of Cash
Examination and Letter of Demandpieces of
evidence which the defense concededly admitted,
but which, to our mind, do not suffice to convict
the petitioner beyond reasonable doubt of the
crime charged.
Thus,
in
a
string
of
categorical
pronouncements, this Court has consistently and
emphatically ruled that the presumption of
conversion incarnated in Article 217, paragraph
(4) of the Revised Penal Code is by its very nature
rebuttable. To put it differently, the presumption
under the law is not conclusive but disputable
by satisfactory evidence to the effect that the
accused did not utilize the public funds or
property for his personal use, gain or benefit.
Accordingly, if the accused is able to
present adequate evidence that can nullify
any likelihood that he had put the funds or
property
to
personal
use,
then
that
presumption would be at an end and the prima
facie case is effectively negated. This Court has
repeatedly said that when the absence of funds
is not due to the personal use thereof by the
accused, the
presumption
is
completely
destroyed; in fact, the presumption is never
deemed to have existed at all.[28]
Applying
the
foregoing
principle,
the
prosecution in the instant case upon whose
burden, as in Diaz vs. Sandiganbayan,[29] was
laden the task of establishing by proof beyond
reasonable doubt that petitioner had committed
the offense charged, mainly relied on the
statutory presumption aforesaid and failed to
present any substantial piece of evidence to
indicate that petitioner had used the funds
for personal gain.

to personal uses has, indeed, not been

proven in the case at bar.[30] Perhaps realizing
such gaping hole, the Sandiganbayan nonetheless
leaped into the conclusion, albeit erroneous, that
herein petitioner was just the same guilty of
malversation invoking the prima facie evidence
stated in Article 217, paragraph (4) of the Revised
Penal Code.
On this score, the rule of general application
is that the factual findings of the Sandiganbayan
are conclusive on this court. However, such rule
admits of settled exceptions, among others: (1)
the conclusion is a finding grounded entirely on
speculation, surmise and conjectures; (2) the
inference made is manifestly mistaken; (3) there
is grave abuse of discretion; (4) the judgment is
based on misapprehension of facts; and (5) the
findings of fact of the Sandiganbayan are
premised on a want of evidence and are
contradicted by evidence on record.[31]
On
this
matter,
the
Sandiganbayans
conclusion that there is no evidence to show
that the accused was then carrying the sum of
P26,404.26 in her person when she allegedly
collapsed at Juan Luna Street, Tacloban City, is to
say the least, without factual basis and not duly
supported by evidence. On the stark contrary, the
records are extant, as petitioner Agullo, in fact,
testified on the witness stand that she had the
money with her when she suffered a stroke and
collapsed on the streets of Tacloban City on 22
October 1985. Records likewise reveal that the
amount of P327.39, which is the difference
between
P26,404.26[32] and
P26,076.87,
[33]
represents the salary of Mr. Alcober, Jr.,
Administrative Officer of the DPWH in Candahug,
who made a telephone call to petitioner for the
latter to bring the sum of P327.39, together with
the payroll.
In the case before us, the Sandiganbayan
undoubtedly disregarded or overlooked certain
evidence of substance which, to a large extent,
bear considerable weight in the adjudication of
petitioners guilt or the affirmation of her
constitutional right to be presumed innocent until
proven otherwise.
Upon thorough scrutiny of the evidence
adduced by both prosecution and defense, we
hold that petitioner Agullo has satisfactorily
overcome and rebutted by competent proof,
the prima facie evidence of conversion so as to
exonerate her from the charge of malversation. To
this end, petitioner presented evidence that
satisfactorily prove that not a single centavo of
the missing funds was used for her own personal
benefit or gain.

True enough, the evidence adduced by the

Worth noting is that the Sandiganbayan, in its
defense reveals sufficient circumstances to
impugned decision, admitted that conversion or
establish the strongest degree of probability that
the placing of malversed government funds
the public funds subject of the criminal indictment

P a g e | 12

for malversation was lost during that fateful day

of 22 October 1985, where petitioner Agullo
suffered a stroke on the streets of Tacloban City
as she was then on her way to the MPWH
Regional Office.
In fact, the records though insensate, clearly
reveal that the prosecution admitted that
petitioner suffered a stroke on the streets of
Tacloban on 22 October 1985. As to the
prosecutions allegation that no evidence exists
regarding loss of the public funds, this postulation
is belied by the records as petitioner herself
testified on the stand that she had the money
subject of inquiry when she collapsed and lost
consciousness as a result of the stroke.
To us, this circumstance coupled with the
other peculiarities attendant in the instant case
and further considering the palpable failure of the
prosecution to adduce other evidence to clearly
establish conversion suffice to make the mind
uneasy as to Agullos guilt, notwithstanding the
prima facie evidence established by law
against herein petitioner, which by no means
dispenses with the need of proving guilt beyond
reasonable doubt."[34] After all, mere absence of
funds is not sufficient proof of conversion. Neither
is the mere failure of the accused to turn over the
funds at any given time sufficient to make even
a prima
facie case. Conversion
must
be
affirmatively proved, either by direct evidence or
by the production of facts from which conversion
necessarily follows.[35]

the premium accorded to the right of an accused

to be presumed innocent until the contrary is
proved, to wit:
The constitutional presumption of innocence is
not an empty platitude meant only to embellish
the Bill of Rights. Its purpose is to balance the
scales in what would otherwise be an uneven
contest between the lone individual pitted against
the People of the Philippines and all the resources
at their command. Its inexorable mandate is that,
for all the authority and influence of the
prosecution, the accused must be acquitted and
set free if his guilt cannot be proved beyond the
whisper of doubt.
Hence, in light of the satisfactory explanation
proffered by the defense and in view of the
impotency
of
the
prosecutions
evidence,
petitioners constitutional right to be presumed
innocent necessarily thrives. Corollarily, the prima
facie evidence of conversion in the instant case,
withers, so to speak, like a petrified twig wilted in
the scorching heat of the noonday sun.
WHEREFORE, premises considered, the
instant petition is granted. ACCORDINGLY, the
decision of respondent Sandiganbayan dated 16
March 1992 and its Resolution dated 18 March
1998, are hereby REVERSED and SET ASIDE.
Petitioner Elvira Agullo is herebyACQUITTED on
grounds of reasonable doubt.
MOREOVER, the DPWH is hereby directed to
refund petitioner the sum of Three Hundred
Seventeen Pesos and Seventy Nine Centavos
(P317.79) representing the amount overdeducted
from petitioners salary, cost of living allowance
and other emoluments.

Truly, these serve as strong considerations

that seriously impair the basis upon which is
founded the legal presumption of personal
misappropriation of money or property of
accountable officers who fail to have forthcoming,
such money or property when so demanded by a
SO ORDERED.
duly authorized official.[36] Verily, a finding
Bellosillo (Chairman), Mendoza, and De Leon,
of prima facie evidence of accountability does not
shatter the presumptive innocence the accused JJ., concur.
Quisumbing, J., on official business.
enjoys because, before prima facie evidence
arises, certain facts [have still to be] proved; the
THIRD DIVISION
trial court cannot depend alone on such an
[G.R.
No.
116754. March 17, 2000]
evidence, because precisely, it is merely prima
MORONG WATER DISTRICT, petitioner, vs.
facie. It must still satisfy that the accused is
OFFICE OF THE DEPUTY OMBUDSMAN,
guiltybeyond reasonable doubtof the offense
WIFRED
L. PASCASIO, RAUL R. ARNAU,
charged. Neither can it rely on the weak defense
[37]
ABELARDO
L. APORTADERA, JR., FRANCISCO
the latter may adduce.
VILLA, EDGARD STA. MARIA and EMMA
Notably, the Sandiganbayan, in convicting
CENSON, respondents. Sc
petitioner, obviously relied more on the flaws and
DECISION
deficiencies in the evidence presented by the
defense, not on the strength and merit of the GONZAGA_REYES, J.:
prosecutions evidence.[38] This course of action is
impermissible for the evidence of the prosecution Assailed in this petition for certiorari is the
clearly cannot sustain a conviction in an Resolution[1] dated 28 March 1994 of the Office of
unprejudiced mind.[39]
the Ombudsman which dismissed the case for
All
told,
this
Court,
through
the violation of R.A. 3019, the Anti-Graft and Corrupt
scholarly ponencia of Mr. Justice Isagani Cruz Practices Act, and Article 217 of the Revised Penal
in People vs. De Guzman,[40] inked in vivid prose Code filed against private respondents Edgard

P a g e | 13

Sta. Maria and Emma Censon by herein petitioner

Morong Water District. Likewise assailed is the
Order[2] dated dated 27 May 1994 denying
petitioners motion for reconsideration.

217 of the Revised Penal Code on malversation of

public funds.

On 24 September 1993, Maximo San Diego,

petitioners officer-in-charge, filed a
complaint[7] before the Office of the OmbudsmanLuzon against private respondents Sta. Maria and
Censon for alleged violations of R.A. 3019, the
Anti-Graft and Corrupt Practices Act and Article

On March 28, 1994, public respondent, through

Graft Investigation Officer Aleu A. Amante, issued
the questioned Resolution dismissing the
compliant. The resolution stated that "(a)fter a
meticulous examination of the records of the
case, there is no sufficient evidence to establish a

The complaint stated that respondents Sta. Maria

and Censon confederated with one another and
The facts of the case are as follows: Scmis
took advantage of their official positions as
General Manager and Advisor, respectively, of the
Morong Water District in taking from the funds of
Private respondent Edgard Sta. Maria, was the
the said office the amount of P33,190.75 for the
former General Manager of petitioner Morong
Water District in San Pedro, Morong, Rizal. Private purpose of paying for the design of MOWAD
respondent Emma Censon was the advisor of the Wawa, San Juan, Morong project. The complaint
alleged that no such design was made, and that
Local Water Utilities Administration assigned to
respondents made it appear that the amount of
petitioner Morong Water District. Respondents
P15,000.00 was given to a certain Engineer
Wilfred L. Pascasio, Raul R. Arnau, Abelardo L.
Ricardo Reyes when in fact, they personally
Aportadera, Jr. and Francisco Villa are officials of
the Office of the Ombudsman who are included as pocketed the aforesaid amount and the rest was
spent in installing the water connections of the
respondents in their official capacities as the
new market site of Morong, Rizal. As proof,
public officers who promulgated the questioned
petitioner attached the joint affidavit[8] of its
resolution and order.
Bookkeeper, Cashier and Finance Manager and a
certification[9] from the Local Water Utilities
On 3 August 1993, Edgard Sta. Maria, while still
Administration that no person by the name of
the General Manager of MOWAD, received from
engineer Ricardo Reyes has ever been employed
petitioner a cash advance of
[3]
by their agency.
P33,190.73 representing an initial release of
funds for the design and execution of the Wawa
Respondents denied the charges in their
pipeline extension project in Morong, Rizal.
respective counter-affidavits. Mis spped
On 5 August 1992, as shown by a journal
In her counter-affidavit, respondent Emma Censon
voucher[4] issued by petitioner, Sta. Maria
denied receiving the amount of P15,000.00 as
submitted a partial liquidation of expenses
charged. She claimed that she was not the
amounting to P15,000.00 against the cash
custodian of petitioners funds and that she did
advance of P33,190.73. Respondent Sta. Maria
not have any participation in the preparation and
allegedly used the money as payment for the
execution of disbursement vouchers covering the
design, including the pipelaying scheme, service
connection detail, and the interconnection detail, release of funds.[10]
of the Sitio Wawa Pipeline Extension. The
liquidation report was supported by a
For his part, respondent Edgard Sta. Maria stated
[5]
Reimbursement Expense Receipt indicating that in his counter-affidavit that he was forcibly ousted
the P15,000.00 was paid to and received by a
as petitioners General Manager on 14 December
certain Engineer Ricardo Reyes.
1992 due to the criminal and administrative
complaints he lodged against some members of
petitioners Board of directors. In view of their
On 10 November 1992, Sta. Maria made a final
liquidation of expenses amounting to P16,790.40. subsequent indictment, the said officials vowed to
get even with him by filing various complaints
The amount was used for the Paglabas Pipeline
against him. With respect to the design for the
Extension in compliance with the request of the
Wawa Project, he claimed that he sent a letter
Municipal Mayor. As indicated in the journal
[6]
dated March 29, 1993 to the Chairman of the
voucher supporting the transaction, the
diversion of funds was authorized by the Board of Board, Mr. Aniceto Mateo, informing him that the
original detailed design plans and drawings of the
directors in a Board Meeting held on 9 October
project were left at petitioners office. He likewise
1992. Mis sc
averred that the present complaint is closely
interrelated with another case, docketed as Civil
On 14 December 1992, Sta. Maria was ousted as
Case No. 492-M, pending with the Regional Trial
General Manager of petitioner Morong Water
Court of Morong, Rizal.[11]
District.

P a g e | 14

probable cause for malversation or violation of RA

3019."[12]Spped

Office of the Ombudsman when supported by

substantial evidence are conclusive."

On 6 May 1994, petitioner filed a motion for

Reconsideration[13] of the above Resolution.

A thorough examination of the questioned Order

and Resolution of the Office of the Ombudsman
and the records of the case reveal that the
findings of fact made by the Ombudsman are
supported by substantial evidence on
record. Spped jo

On May 27, 1994, public respondent, through

Graft Investigation Officer Wilfredo L. Pacasio,
issued the questioned Order dismissing the
Motion for Reconsideration. The Order first noted
that the motion for reconsideration did not raise
any new issues and did not adduce any newly
discovered evidence. Instead of dismissing the
motion outright on this ground, the Office of the
Ombudsman made an extended discussion of the
issues raised by petitioner. It was emphasized
that the evidence on record, particularly the
"journal voucher" and "reimbursement expense
receipt", indubitably disclosed that the sum
allegedly misappropriated had, in fact, been duly
liquidated by the respondents. Moreover, the
Ombudsman stated that the version of the
respondents was more logical, natural and
believable. Finally, public respondent states that
the allegation of conspiracy had not been fully
substantiated and thus, the inclusion and joiner of
respondent Emma Censon had no legal
justification. Public respondent thus dismissed the
motion for reconsideration and affirmed its
Resolution dated 28 March 1994.
Petitioner now comes to us by way of the instant
Petition for Certiorari. Petitioner grounds the
instant petition on the following allegation: Jo
spped
"(The) Hon. Office of the Deputy Ombudsman
acted arbitrarily, whimsically and with grave
abused (sic) of discretion and authority dismissed
OMB Case No. 0-93-2579 when in the conduct of
the preliminary investigation Respondents biasely
(sic) disregarded the evidence in the record which
clearly established a prima facie case of
malversation as supported by the facts, the law
and existing jurisprudence."[14]
There is no merit in the petition.
At the outset, a reading of the petition shows that
the issues raised refer primarily to the findings of
fact made by the respondent public officials. On
this point, it must be stressed that any appeal or
application for remedy against a decision or
finding of the Office of the Ombudsman may only
be entertained by the Supreme Court, on pure
question of law.[15] Section 14 of Republic Act No.
6770, the Ombudsman Act of 1989, provides that
"(n)o court shall hear any appeal or application for
remedy against the decision or findings of the
Ombudsman, except the Supreme Court on pure
question of law." Moreover, Section 27 of the said
Act provides further that "(f)indings of fact by the

Petitioners main contention in its complaint before

the Office of the Ombudsman is that private
respondents conspired with each other in
withdrawing the amount of P33,190.75 from the
coffers of petitioner and then pocket P15,000.00
for their own personal use.[16] On this point, we
note with approval the following pronouncement
of the Office of the Ombudsman:
"After a meticulous examination of
the records of the case, the
undersigned finds that there is no
sufficient evidence to establish a
probable cause for malversation or
violation of R.A. 3019 for that matter,
and that respondents are probably
guilty thereof. There is no question
that respondent Edgard Sta. Maria is
the payee of Cash Voucher No. 3150
dated August 3, 1992. On the face of
the said cash voucher, it is disclosed
that it was prepared by the
Bookkeeper, certified as to the
availability of funds by the Finance
Officer and the check prepared by
the Cashier. It is also disclosed by
the same document that the cash
advance was to be used for the
design and execution of Project
Wawa Pipeline Extension. As regards,
therefore, to the participation of
respondent Emma Censon it is very
clear that she has nothing to do with
the cash advance of P33,190.73.
With respect to respondent Edgard
Sta. Maria, obviously he has the duty
to liquidate the said cash advance.
However, complainants Annex "B"
which is a general ledger of account,
disclose that the amount
of P16,790.40 was diverted to
Paglabas Pipeline Extension, but
which diversion was authorized by
the Board of Directors as per Board
Meeting of October 9, 1992. It is
worthy to note that this general
ledger was signed by complainants
witnesses, the Bookkeeper and the
Finance Manager, in the same
manner that they affixed signatures
on the cash voucher, together with
the cashier. Miso

P a g e | 15

Going back to respondent Sta. Marias

duty to liquidate or account for the
said cash advance, the evidence of
complainant also shows that
the P16,790.40 was duly receipted
by the Filacon Enterprises for the
amount of 4 rolls of P.S. Tubing (32
pieces) 1 x 100 cm. It cannot be said
therefore, that the amount of
P16,790.40 was misappropriated by
respondent Sta. Maria for his
personal benefit. As to the remaining
balance of P15,000.00 which
allegedly was pocketed by
respondent instead of using the
same in payment in payment of the
design for the Wawa project, there
also appears a reimbursement
expense receipt which is attached by
the complainant as its Annex "D."
The same was signed by a certain
civil engineer Ricardo Reyes. The
latter attested that he received the
amount as partial payment for the
design. Complainants claim that
Ricardo Reyes is a fictitious person is
based on the certification from the
Local Water Utilities Administration
that he is not an employee therein.
The reimbursement expense receipt
did not however state that Engineer
Ricardo Reyes is an employee of
LWUA. Hence, the certification of said
agency will not be conclusive
evidence of Ricardo Reyes being a
fictitious person, as there was no
representation of said fact in the
reimbursement receipt."[17]

the evidence on record which allegedly clearly

show a prima facie case for malversation. Nex old
We have closely examined the issues raised in the
present petition, the arguments in support
thereof, as well as the comments of the
respondents thereon and the reply thereto and we
find that the petition fails to show a grave abuse
of discretion or any act without or in excess of
jurisdiction on the part of private respondents.
The public respondents act of dismissing the
complaint against herein private respondents is
neither whimsical or capricious. In fact, the
complaint of petitioner was taken up by the Office
of the Ombudsman in two extended discussions.
Such fact virtually dispels any allegation that
arbitrariness or abuse of discretion attended the
resolution of petitioners complaint.
The act of the Ombudsman is dismissing the
complaint is an exercise of the Ombudsmans
powers based upon constitutional mandate and
the courts should not interfere with such exercise.
[19]
The rule is based not only upon respect for the
investigatory and prosecutory powers granted by
the Constitution to the Office of the Ombudsman
but upon practicality as well. Otherwise, the
functions of the Court will be grievously hampered
by innumerable petitions assailing the dismissal
of investigatory proceedings conducted by the
Office of the Ombudsman with regard to
complaints filed before it.

One final point. Petitioner likewise contends that

the Office of the Ombudsman erred in stating that
demand from the Commission on Audit to settle
or liquidate the amount is needed before a case
for malversation can mature. Citing the case
of U.S. vs. Saberon,[20] the petitioner argues that
The above-quoted portion of the questioned
demand need not be made by the Commission on
resolution clearly shows that the findings of the
Audit as it is sufficient that there is a law or
Office of the Ombudsman regarding the liability of regulation requiring the public officer to render an
private respondents are supported by substantial accounting. Mani kx
evidence. The conclusion that the amounts
allegedly malversed by private respondents were There is merit in petitioners contention although
actually liquidated by them finds support not only his reliance on the cited case is misplaced.
in the evidence of private respondents but even in The Saberon case is not applicable as it deals with
the evidence submitted by petitioner in its
a violation of Article 218 of the Revised Penal
complaint. Such factual findings of the Office of
Code for failure of accountable officers to render
the Ombudsman deserve due respect from the
accounts. On the other hand, the instant case
Supreme Court and should not be disturbed on
involves a violation of Article 217 of the Revised
appeal.[18]
Penal Code for malversation of public funds and
property which is entirely separate and distinct
Despite a clear showing that the issues involved
from Article 218. Petitioner should have cited the
in the instant petition are factual, petitioner,
case ofPeople vs. Tolentino[21] which held that
nonetheless, invokes the power of the court to
previous demand is not necessary for violation of
reverse the decision of the Ombudsman by
article 217 in spite of the last paragraph of the
alleging that the Office of the Ombudsman acted
said provision. The last paragraph of article 217
with grave abuse of discretion and authority.
provides only for a rule of procedural law. More
Petitioner claims that the public respondents
recently, in the case of Nizurtado vs.
acted arbitrarily and whimsically in disregarding
Sandiganbayan,[22] the Court stated in this regard
that "(d)emand merely raises

P a g e | 16

a prima facie presumption that missing funds

have been put to personal use. The demand itself,
however, is not an element of, and not
indispensable to constitute, malversation." Maniks
Be that as it may, this is still no reason to
overturn the assailed Order and Resolution of the
Office of the Ombudsman. The holding of the
Office of the Ombudsman that no demand was
made by the Commission on Audit is not the main
reason why petitioners complaint was dismissed.
As stated previously, the Office of the
ombudsman dismissed the complaint as it found
that there was no sufficient evidence to establish
probable cause against private respondents for
malversation or violation of R.A. 3019.
In sum, the order and the Resolution of the
Ombudsman are based on substantial evidence.
In dismissing the complaint of petitioner, we
cannot say that the Ombudsman committed
grave abuse of discretion so as to call for the
exercise of our supervisory powers over him. This
court is not a trier of facts. As long as there is
substantial evidence in support of the
Ombudsmans decision, that the decision will not
be overturned.[23]
WHEREFORE, premises considered, the instant
petition is DISMISSED. The Resolution dated
March 28, 1994 and the Order dated May 27,
1994 of the Office of the Ombudsman are hereby
AFFIRMED.
SO ORDERED. Manikan
Melo, (Chairman), Vitug,
Panganiban, and Purisima, JJ., concur.
[G.R. No. 103501-03. February 17, 1997]
LUIS A. TABUENA, petitioner,
vs. HONORABLE SANDIGANBAYAN, and THE
PEOPLE OF THE PHILIPPINES, respondents.
[G.R. No. 103507. February 17, 1997]
ADOLFO M. PERALTA, petitioner, vs. HON.
SANDIGANBAYAN (First Division), and THE
PEOPLE OF THE PHILIPPINES, represented
by the OFFICE OF THE SPECIAL
PROSECUTOR, respondents.
DECISION
FRANCISCO, J.:
Through their separate petitions for review,
Luis A. Tabuena and Adolfo M. Peralta (Tabuena
and Peralta, for short) appeal the Sandiganbayan
decision dated October 12, 1990,[2] as well as the
Resolution dated December 20, 1991[3] denying
reconsideration, convicting them of malversation
under Article 217 of the Revised Penal
Code. Tabuena and Peralta were found guilty
[1]

beyond reasonable doubt of having malversed the

total amount of P55 Million of the Manila
International Airport Authority (MIAA) funds during
their incumbency as General Manager and Acting
Finance Services Manager, respectively, of MIAA,
and were thus meted the following sentence:
(1) In Criminal Case No. 11758, accused Luis A.
Tabuena is sentenced to suffer the penalty of
imprisonment of seventeen (17) years and one (1)
day of reclusion temporal as minimum to twenty
(20) years of reclusion temporal as maximum,
and to pay a fine of TWENTY-FIVE MILLION PESOS
(P25,000,000.00), the amount malversed. He shall
also reimburse the Manila International Airport
Authority the sum of TWENTY-FIVE MILLION PESOS
(P25,000,000.00).
In addition, he shall suffer the penalty of
perpetual special disqualification from public
office.
(2) In Criminal Case No. 11759, accused Luis A.
Tabuena is sentenced to suffer the penalty of
imprisonment of seventeen (17) years and one (1)
day of reclusion temporal as minimum, and
twenty (20) years of reclusion temporal as
maximum, and to pay a fine of TWENTY-FIVE
MILLION PESOS (P25,000,000.00), the amount
malversed. He shall also reimburse the Manila
International Airport Authority the sum of
TWENTY-FIVE MILLION PESOS (P25,000,000.00).
In addition, he shall suffer the penalty of
perpetual special disqualification from public
office.
(3) In Criminal Case No. 11760, accused Luis A.
Tabuena and Adolfo M. Peralta are each sentenced
to suffer the penalty of imprisonment of
seventeen (17) years and one (1) day of reclusion
temporal as minimum and twenty (20) years
of reclusion temporal as maximum and for each of
them to pay separately a fine of FIVE MILLION
PESOS (P5,000,000.00) the amount
malversed. They shall also reimburse jointly and
severally the Manila International Airport
Authority the sum of FIVE MILLION PESOS
(P5,000,000.00).
In addition, they shall both suffer the penalty of
perpetual special disqualification from public
office.
A co-accused of Tabuena and Peralta was
Gerardo G. Dabao, then Assistant General
Manager of MIAA, has remained at large.
There were three (3) criminal cases filed (nos.
11758, 11759 and 11760) since the total amount
of P55 Million was taken on three (3) separate
dates of January, 1986. Tabuena appears as the

P a g e | 17

principal accused - he being charged in all three

(3) cases. The amended informations in criminal
case nos. 11758, 11759 and 11760 respectively
read:
That on or about the 10th day of January, 1986,
and for sometime subsequent thereto, in the City
of Pasay, Philippines, and within the jurisdiction of
this Honorable Court, accused Luis A. Tabuena
and Gerardo G. Dabao, both public officers, being
then the General Manager and Assistant General
Manager, respectively, of the Manila International
Airport Authority (MIAA), and accountable for
public funds belonging to the MIAA, they being
the only ones authorized to make withdrawals
against the cash accounts of MIAA pursuant to its
board resolutions, conspiring, confederating and
confabulating with each other, did then and there
wilfully, unlawfully, feloniously, and with intent to
defraud the government, take and misappropriate
the amount of TWENTY FIVE MILLION PESOS
(P25,000,000.00) from MIAA funds by applying for
the issuance of a managers check for said amount
in the name of accused Luis A. Tabuena
chargeable against MIAAs Savings Account No.
274-500-354-3 in the PNB Extension Office at the
Manila International Airport in Pasay City,
purportedly as partial payment to the Philippine
National Construction Corporation (PNCC), the
mechanics of which said accused Tabuena would
personally take care of, when both accused well
knew that there was no outstanding obligation of
MIAA in favor of PNCC, and after the issuance of
the above-mentioned managers check, accused
Luis A. Tabuena encashed the same and
thereafter both accused misappropriated and
converted the proceeds thereof to their personal
use and benefit, to the damage and prejudice of
the government in the aforesaid amount.
CONTRARY TO LAW.
xxx

in the name of accused Luis A. Tabuena

chargeable against MIAAs Savings Account No.
274-500-354-3 in the PNB Extension Office at the
Manila International Airport in Pasay City,
purportedly as partial payment to the Philippine
National Construction Corporation (PNCC), the
mechanics of which said accused Tabuena would
personally take care of, when both accused well
knew that there was no outstanding obligation of
MIAA in favor of PNCC, and after the issuance of
the above-mentioned managers check, accused
Luis A. Tabuena encashed the same and
thereafter both accused misappropriated and
converted the proceeds thereof to their personal
use and benefit, to the damage and prejudice of
the government in the aforesaid amount.
CONTRARY TO LAW.
xxx
That on or about the 29th day of January, 1986,
and for sometime subsequent thereto, in the City
of Pasay, Philippines, and within the jurisdiction of
this Honorable Court, accused Luis A. Tabuena
and Adolfo M. Peralta, both public officers, being
then the General Manager and Acting Manager,
Financial Services Department, respectively, of
the Manila International Airport Authority (MIAA),
and accountable for public funds belonging to the
MIAA, they being the only ones authorized to
make withdrawals against the cash accounts of
MIAA pursuant to its board resolutions, conspiring,
confederating and confabulating with each other,
did then and there wilfully, unlawfully, feloniously,
and with intent to defraud the government, take
and misappropriate the amount of FIVE MILLION
PESOS (P5,000,000.00) from MIAA funds by
applying for the issuance of a managers check for
said amount in the name of accused Luis A.
Tabuena chargeable against MIAAs Savings
Account No. 274-500-354-3 in the PNB Extension
Office at the Manila International Airport in Pasay
City, purportedly as partial payment to the
Philippine National Construction Corporation
(PNCC), the mechanics of which said accused
Tabuena would personally take care of, when both
accused well knew that there was no outstanding
obligation of MIAA in favor of PNCC, and after the
issuance of the above-mentioned managers
check, accused Luis A. Tabuena encashed the
same and thereafter both accused
misappropriated and converted the proceeds
thereof to their personal use and benefit, to the
damage and prejudice of the government in the
aforesaid amount.

That on or about the 16th day of January, 1986,

and for sometime subsequent thereto, in the City
of Pasay, Philippines and within the jurisdiction of
this Honorable Court, accused Luis A. Tabuena
and Gerardo G. Dabao, both public officers, being
then the General Manager and Assistant General
Manager, respectively, of the Manila International
Airport Authority (MIAA), and accountable for
public funds belonging to the MIAA, they being
the only ones authorized to make withdrawals
against the cash accounts of MIAA pursuant to its
board resolutions, conspiring, confederating and
confabulating with each other, did then and there
wilfully, unlawfully, feloniously, and with intent to CONTRARY TO LAW.
defraud the government, take and misappropriate
the amount of TWENTY FIVE MILLION PESOS
Gathered
from
the
documentary
and
(P25,000,000.00) from MIAA funds by applying for testimonial evidence are the following essential
the issuance of a managers check for said amount antecedents:

P a g e | 18

Then President Marcos instructed Tabuena over

National Construction Corporation (PNCC),
the phone to pay directly to the presidents office
formerly CDCP, as follows:
and in cash what the MIAA owes the Philippine
National Construction Corporation (PNCC), to
1. Supplemental Contract No. 12
which Tabuena replied, Yes, sir, I will do it. About a
Package Contract No. 2
week later, Tabuena received from Mrs. Fe RoaGimenez, then private secretary of Marcos, a
2. Supplemental Contract No. 13
Presidential Memorandum dated January 8, 1986
(hereinafter referred to as MARCOS Memorandum) 3. Supplemental Contract No. 14
reiterating in black and white such verbal
Package Contract No. 2
instruction, to wit:
4. Supplemental Contract No. 15
Office of the President
5. Supplemental Contract No. 16

5,758,96

of the Philippines

233,561.

Malacaang

Package Contract No. 2

MEMO TO: The General Manager

Manila International Airport Authority

1,699,86

8,821,73

7. Supplemental Contract No. 18

Package Contract No. 2

6,110,11

8. Supplemental Contract No. 3

Package Contract No. II

You are hereby directed to pay immediately the

Philippine National Construction Corporation, thru
this Office, the sum of FIFTY FIVE MILLION
(P55,000,000.00) PESOS in cash as partial
payment of MIAAs account with said Company
mentioned in a Memorandum of Minister Roberto
Ongpin to this Office dated January 7, 1985 and
duly approved by this Office on February 4, 1985.

4,586,61

6. Supplemental Contract No. 17

Package Contract No. 2

January 8, 1986

P11,106,

16,617,6

(xerox copies only; original memo was submitted

to the Office of the President on May 28, 1984)

In this connection, please be informed that

Philippine National Construction Corporation
(PNCC), formerly CDCP, has accomplishment
billings on the MIA Development Project
aggregating P98.4 million, inclusive of
Your immediate compliance is appreciated.
accomplishments for the aforecited contracts. In
accordance with contract provisions, outstanding
(Sgd.) FERDINAND MARCOS.[4]
advances totalling P93.9 million are to be
deducted from said billings which will leave a net
The January 7, 1985 memorandum of then
amount due to PNCC of only P4.5 million.
Minister of Trade and Industry Roberto Ongpin
referred to in the MARCOS Memorandum, reads in
At the same time, PNCC has potential escalation
full:
claims amounting to P99 million in the following
stages of approval/evaluation:
MEMORANDUM
F o r : The President
F r o m : Minister Roberto V. Ongpin
D a t e : 7 January 1985
Subject : Approval of Supplemental Contracts and
Request for Partial Deferment of Repayment of
PNCCs Advances for MIA Development Project
May I request your approval of the attached
recommendations of Minister Jesus S. Hipolito for
eight (8) supplemental contracts pertaining to the
MIA Development Project (MIADP) between the
Bureau of Air Transport (BAT) and Philippine

Approved by Price Escalation Committee P 1.9 m

(PEC) but pended for lack of funds

Endorsed by project consultants and

currently being evaluated by PEC

30.7 m

Submitted by PNCC directly to PEC and

currently under evaluation

66.5 m

Total

P99.1 m

P a g e | 19

There has been no funding allocation for any of

the above escalation claims due to budgetary
constraints.
The MIA Project has been completed and
operational as far back as 1982 and yet residual
amounts due to PNCC have not been paid,
resulting in undue burden to PNCC due to
additional cost of money to service its obligations
for this contract.
To allow PNCC to collect partially its billings, and
in consideration of its pending escalation billings,
may we request for His Excellencys approval for a
deferment of the repayment of PNCCs advances
to the extent of P30 million corresponding to
about 30% of P99.1 million in escalation claims of
PNCC, of which P32.5 million has been officially
recognized by MIADP consultants but could not be
paid due to lack of funding.Korte

accompanied Tabuena to the PNB Villamor branch

as Tabuena requested him to do the counting of
the P5 Million. After the counting, the money was
placed in two (2) peerless boxes which were
loaded in the trunk of Tabuenas car. Peralta did
not go with Tabuena to deliver the money to Mrs.
Gimenez office at Aguado Street. It was only upon
delivery of the P5 Million that Mrs. Gimenez issued
a receipt for all the amounts she received from
Tabuena. The receipt, dated January 30, 1986,
reads:
Malacaang
Manila
January 30, 1986
RECEIVED FROM LOUIE TABUENA THE TOTAL
AMOUNT OF FIFTY FIVE MILLION PESOS
(P55,000,000.00) as of the following dates:

Our proposal will allow BAT to pay PNCC the

amount of P34.5 million out of existing MIA Project Jan. 10 - P25,000,000.00
funds. This amount represents the excess of the
gross billings of PNCC of P98.4 million over the
Jan. 16 - 25,000,000.00
undeferred portion of the repayment of advances
of P63.9 million.
Jan. 30 - 5,000,000.00
(Sgd.) ROBERTO V. ONGPIN

(Sgd.) Fe Roa-Gimenez

Minister[5]

The disbursement of the P55 Million was, as

described
by
Tabuena
and
Peralta
themselves, out of the ordinary and not based on
the normal procedure. Not only were there no
vouchers prepared to support the disbursement,
the P55 Million was paid in cold cash. Also, no
PNCC
receipt
for
the P55
Million
was
presented. Defense witness Francis Monera, then
Senior Assistant Vice President and Corporate
Comptroller of PNCC, even affirmed in court that
there were no payments made to PNCC by MIAA
for the months of January to June of 1986.

In obedience to President Marcos verbal

instruction and memorandum, Tabuena, with the
help of Dabao and Peralta, caused the release
of P55 Million of MIAA funds by means of three (3)
withdrawals.
The first withdrawal was made on January 10,
1986 for P25 Million, following a letter of even
date signed by Tabuena and Dabao requesting the
PNB extension office at the MIAA - the depository
branch of MIAA funds, to issue a managers check
for said amount payable to Tabuena. The check
was encashed, however, at the PNB Villamor
Branch. Dabao and the cashier of the PNB
Villamor branch counted the money after which,
Tabuena took delivery thereof. The P25 Million in
cash were then placed in peerless boxes and
duffle bags, loaded on a PNB armored car and
delivered on the same day to the office of Mrs.
Gimenez located at Aguado Street fronting
Malacaang. Mrs. Gimenez did not issue any
receipt for the money received.

The position of the prosecution was that there

were no outstanding obligations in favor of PNCC
at the time of the disbursement of the P55
Million. On the other hand, the defense of
Tabuena and Peralta, in short, was that they acted
in good faith. Tabuena claimed that he was merely
complying with the MARCOS Memorandum which
ordered him to forward immediately to the Office
of the President P55 Million in cash as partial
payment of MIAAs obligations to PNCC, and that
he (Tabuena) was of the belief that MIAA indeed
Similar circumstances surrounded the second had liabilities to PNCC. Peralta for his part shared
withdrawal/encashment
and
delivery
of the same belief and so he heeded the request of
Tabuena, his superior, for him (Peralta) to help in
another P25 Million, made on January 16, 1986.
the release of P5 Million.
The third and last withdrawal was made on
With the rejection by the Sandiganbayan of
January 31, 1986 for P5 Million. Peralta was
their
claim of good faith which ultimately led to
Tabuenas co-signatory to the letter- request for a
their
conviction, Tabuena and Peralta now set
managers
check
for
this
amount. Peralta
forth a total of ten (10) errors [6] committed by the

P a g e | 20

Sandiganbayan for this Courts consideration. It v. Sandiganbayan[9] where the Court passed upon
appears, however, that at the core of their plea similar protestations raised by therein accusedthat we acquit them are the following:
petitioner Cabello whose conviction for the same
crime of malversation was affirmed, in this wise:
1) the Sandiganbayan convicted them of a crime
not charged in the amended informations, and
x x x even on the putative assumption that the
evidence against petitioner yielded a case of
malversation by negligence but the information
2) they acted in good faith.
was for intentional malversation, under the
Anent the first proposition, Tabuena and circumstances of this case his conviction under
Peralta stress that they were being charged with the first mode of misappropriation would still be in
intentional malversation, as the amended order. Malversation is committed either
intentionally or by negligence. The dolo or
informations commonly allege that:
the culpa present in the offense is only a modality
x x x accused x x x conspiring, confederating and in the perpetration of the felony. Even if the mode
confabulating with each other, did then and there charged differs from the mode proved, the same
wilfully, unlawfully, feloniously, and with intent to offense of malversation is involved and conviction
thereof is proper. x x x.
defraud the government, take and
misappropriated the amount of x x x.
In Samson vs. Court of Appeals, et. al., we held
But it would appear that they were convicted that an accused charged with willful or intentional
of malversation by negligence. In this connection, falsification can validly be convicted of
the Courts attention is directed to p. 17 of the falsification through negligence, thus:
December 20, 1991 Resolution (denying Tabuenas
and Peraltas motion for reconsideration) wherein While a criminal negligent act is not a simple
modality of a willful crime, as we held in Quizon
the Sandiganbayan said:
vs. Justice of the Peace of Bacolor, G.R. No. L6641, July 28, 1995, but a distinct crime in our
xxxxxxxxx
Penal Code, designated as a quasi offense in our
On the contrary, what the evidence shows is that Penal Code, it may however be said that a
conviction for the former can be had under an
accused Tabuena delivered the P55 Million to
information exclusively charging the commission
people who were not entitled thereto, either as
of a willful offense, upon the theory that the
representatives of MIAA or of the PNCC.Sclaw
greater includes the lesser offense. This is the
situation that obtains in the present
It proves that Tabuena had deliberately consented
case. Appellant was charged with willful
or permitted through negligence or abandonment,
falsification but from the evidence submitted by
some other person to take such public
the parties, the Court of Appeals found that in
funds. Having done so, Tabuena, by his own
effecting the falsification which made possible the
narration, has categorically demonstrated that he
cashing of the checks in question, appellant did
is guilty of the misappropriation or malversation
not act with criminal intent but merely failed to
of P55 Million of public funds. (Underscoring
take proper and adequate means to assure
supplied.)
himself of the identity of the real claimants as an
ordinary prudent man would do. In other words,
To support their theory that such variance is a
the information alleges acts which charge willful
reversible flaw, Tabuena and Peralta argue that:
falsification but which turned out to be not willful
but negligent. This is a case covered by the rule
1) While malversation may be committed
when there is a variance between the allegation
intentionally or by negligence, both modes cannot and proof, and is similar to some of the cases
be committed at the same time.
decided by this Tribunal.
2) The Sandiganbayan was without jurisdiction to x x x
convict them of malversation of negligence where
the amended informations charged them with
Moreover, Section 5, Rule 116, of the Rules of
intentional malversation.[7]
Court does not require that all the essential
elements of the offense charged in the
3) Their conviction of a crime different from that
information be proved, it being sufficient that
charged violated their constitutional right to be
some of said essential elements or ingredients
informed of the accusation.[8]
thereof be established to constitute the crime
proved. x x x.
We do not agree with Tabuena and Peralta on
this point. Illuminative and controlling is Cabello

P a g e | 21

The fact that the information does not allege that

the falsification was committed with imprudence
is of no moment for here this deficiency appears
supplied by the evidence submitted by appellant
himself and the
result has proven beneficial to him. Certainly, havi
ng alleged that the falsification has been willful, it
would be incongruous to allege at the same time
that it was committed with imprudence for a
charge of criminal intent is incompatible with the
concept of negligence.
Subsequently, we ruled in People vs. Consigna,
et. al., that the aforestated rationale and
arguments also apply to the felony of
malversation, that is, that an accused charged
with willful malversation, in an information
containing allegations similar to those involved in
the present case, can be validly convicted of the
same offense of malversation through negligence
where the evidence sustains the latter mode of
perpetrating the offense.
Going now to the defense of good faith, it is
settled that this is a valid defense in a prosecution
for malversation for it would negate criminal
intent on the part of the accused. Thus, in the two
(2) vintage, but significant malversation cases
of US v. Catolico[10] and US v. Elvia,[11] the Court
stressed that:
To constitute a crime, the act must, except in
certain crimes made such by statute, be
accompanied by a criminal intent, or by such
negligence or indifference to duty or to
consequences as, in law, is equivalent to criminal
intent. The maxim is actus non facit reum, nisi
mens sit rea - a crime is not committed if the
mind of the person performing the act complained
of is innocent.
The rule was reiterated in People v. Pacana,
although this case involved falsification of
public documents and estafa:
[12]

Ordinarily, evil intent must unite with an unlawful

act for there to be a crime. Actus non facit reum,
nisi mens sit rea. There can be no crime when the
criminal mind is wanting.
American jurisprudence echoes the same
principle. It adheres to the view that criminal
intent in embezzlement is not based on technical
mistakes as to the legal effect of a transaction
honestly entered into, and there can be no
embezzlement if the mind of the person doing the
act is innocent or if there is no wrongful purpose.
[13]
The accused may thus always introduce
evidence to show he acted in good faith and that
he had no intention to convert.[14] And this, to our
mind, Tabuena and Peralta had meritoriously
shown.

In so far as Tabuena is concerned, with the

due presentation in evidence of the MARCOS
Memorandum, we are swayed to give credit to his
claim of having caused the disbursement of
the P55 Million solely by reason of such
memorandum.From this premise flows the
following reasons and/or considerations that
would buttress his innocence of the crime of
malversation.
First. Tabuena had no other choice but to
make the withdrawals, for that was what the
MARCOS Memorandum required him to do. He
could not be faulted if he had to obey and strictly
comply with the presidential directive, and to
argue otherwise is something easier said than
done. Marcos was undeniably Tabuenas superior
the former being then the President of the
Republic who unquestionably exercised control
over government agencies such as the MIAA and
PNCC.[15] In other words, Marcos had a say in
matters involving inter-government agency affairs
and transactions, such as for instance, directing
payment of liability of one entity to another and
the manner in which it should be carried out. And
as a recipient of such kind of a directive coming
from the highest official of the land no less, good
faith should be read on Tabuenas compliance,
without hesitation nor any question, with the
MARCOS Memorandum. Tabuena therefore is
entitled to the justifying circumstance of Any
person who acts in obedience to an order issued
by a superior for some lawful purpose. [16] The
subordinate-superior
relationship
between
Tabuena and Marcos is clear. And so too, is the
lawfulness of the order contained in the MARCOS
Memorandum, as it has for its purpose partial
payment of the liability of one government
agency (MIAA) to another (PNCC). However, the
unlawfulness of the MARCOS Memorandum was
being argued, on the observation, for instance,
that the Ongpin Memo referred to in the
presidential directive reveals a liability of only
about P34.5 Million. The Sandiganbayan in this
connection said:
Exhibits 2 and 2-a (pages 1 and 2 of the
memorandum of Min. Ongpin to the President
dated January 7, 1985) were mainly:
a.) for the approval of eight Supplemental
Contracts; and
b.) a request for partial deferment of payment by
PNCC for advances made for the MIAA
Development Project, while at the same time
recognizing some of the PNCCs escalation billings
which would result in making payable to PNCC the
amount of P34.5 million out of existing MIAA
Project funds.
Thus:

P a g e | 22

xxx
To allow PNCC to collect partially its billings, and
in consideration of its pending escalation
billings, may we request for His Excellencys
approval for a deferment of repayment of PNCCs
advances to the extent of P30 million
corresponding to about 30% of P99.1 million in
escalation claims of PNCC, of which P32.6 million
has been officially recognized by MIADP
consultants but could not be paid due to lack of
funding.
Our proposal will allow BAT to pay PNCC the
amount of P34.5 million out of existing MIA
Project funds. This amount represents the excess
of the gross billings of PNCC of P98.4 million over
the undeferred portion of the repayment of
advances of P63.9 million.

portion of a bigger liability to PNCC. This belief is

supported by defense witness Francis Monera
who, on direct examination, testified that:
ATTY ANDRES
Q Can you please show us in this Exhibit 7
and 7-a where it is indicated the
receivables from MIA as of December
31, 1985?
A As of December 31, 1985, the
receivables from MIA is shown on
page 2, marked as Exhibit 7-a,
sir, P102,475,392.35.
x x x x x x x x x.[19]
ATTY. ANDRES
Q Can you tell us, Mr. Witness, what these
obligations represent?

While Min. Ongpin may have, therefore

recognized the escalation claims of the PNCC to
MIAA to the extent of P99.1 million (Exhibit 2a), a
substantial portion thereof was still in the stages
of evaluation and approval, with only P32.6
million having been officially recognized by the
MIADP consultants.

WITNESS

If any payments were, therefore, due under this

memo for Min. Ongpin (upon which President
Marcos Memo was based) they would only be for
a sum of up to P34.5 million.[17]

Q What do you mean by escalation?

xxxxxxxxx
V. Pres. Marcos order to Tabuena dated January 8,
1986 baseless.
Not only was Pres. Marcos Memo (Exhibit 1) for
Tabuena to pay P55 million irrelevant, but it was
actually baseless.

A These obligations represent receivables

on the basis of our billings to MIA as
contract-owner of the project that the
Philippine
National
Construction
Corporation constructed. These are
billings for escalation mostly, sir.
A Escalation is the component of our
revenue billings to the contract-owner
that are supposed to take care of price
increases, sir.
x x x x x x x x x.[20]
ATTY ANDRES
Q When you said these are accounts
receivable, do I understand from you
that these are due and demandable?
A Yes, sir.[21]

Thus, even if the order is illegal if it is patently

legal and the subordinate is not aware of its
illegality, the subordinate is not liable, for then
Exhibit 1 purports to refer itself to the Ongpin
be a mistake of fact committed
Memorandum (Exhibit 2, 2-a); Exhibit 1, however, there would only
[22]
faith.
Such is the ruling in Nassif v.
speaks of P55 million to be paid to the PNCC while in good
[23]
People
the
facts
of which, in brief, are as
Exhibit 2 authorized only P34.5 million. The order
follows:
to withdraw the amount of P55 million exceeded
the approved payment ofP34.5 million by P20.5
Accused was charged with falsification of
million. Min. Ongpins Memo of January 7, 1985
commercial document. A mere employee of R.J.
could not therefore serve as a basis for the
[18]
Campos, he inserted in the commercial document
Presidents order to withdraw P55 million.
alleged to have been falsified the word sold by
Granting this to be true, it will not nevertheless order of his principal. Had he known or suspected
affect Tabuenas good faith so as to make him that his principal was committing an improper act
criminally liable. What is more significant to of falsification, he would be liable either as a coconsider is that the MARCOS Memorandum is principal or as an accomplice. However, there
patently legal (for on its face it directs payment of being no malice on his part, he was exempted
employee
an outstanding liability) and that Tabuena acted from criminal liability as he was a mere
[24]
following
the
orders
of
his
principal.
under the honest belief that the P55 million was a
This is easy to see.

due and demandable debt and that it was just a

P a g e | 23

Second. There is no denying that the

disbursement, which Tabuena admitted as out of
the ordinary, did not comply with certain auditing
rules and regulations such as those pointed out
by the Sandiganbayan, to wit:
a) [except for salaries and wages and for
commutation of leaves] all disbursements
above P1,000.00 should be made by check (Basic
Guidelines for Internal Control dated January 31,
1977 issued by COA)
b) payment of all claims against the government
had to be supported with complete
documentation (Sec. 4, P.D. 1445, State Auditing
Code of the Philippines). In this connection, the
Sandiganbayan observed that:
There were no vouchers to authorize the
disbursements in question. There were no bills to
support the disbursement. There were no
certifications as to the availability of funds for an
unquestionably staggering sum of P55 Million.[25]
c) failure to protest (Sec. 106, P.D. 1445)
But this deviation was inevitable under the
circumstances Tabuena was in. He did not have
the luxury of time to observe all auditing
procedures of disbursement considering the fact
that the MARCOS Memorandum enjoined his
immediate compliance with the directive that he
forward to the Presidents Office the P55 Million in
cash. Be that as it may, Tabuena surely cannot
escape responsibility for such omission. But since
he was acting in good faith, his liability should
only be administrative or civil in nature, and not
criminal. This follows the decision in Villacorta v.
People[26] where the Court, in acquitting therein
accused
municipal
treasurer
of
Pandan,
Catanduanes of malversation after finding that he
incurred a shortage in his cash accountability by
reason of his payment in good faith to certain
government personnel of their legitimate wages,
leave allowances, etc., held that:
Nor can negligence approximating malice or fraud
be attributed to petitioner. If he made wrong
payments, they were in good faith mainly
to government personnel, some of them working
at the provincial auditors and the provincial
treasurers offices. And if those payments ran
counter to auditing rules and regulations, they did
not amount to a criminal offense and he should
only be held administratively or civilly liable.

Manual on Certificate of Settlement and Balances

- apparently made to underscore Tabuenas
personal accountability, as agency head, for MIAA
funds - would all the more support the view that
Tabuena is vulnerable to civil sanctions
only. Sections 29.2 and 29.5 expressly and solely
speak of civilly liable to describe the kind of
sanction imposable on a superior officer who
performs his duties with bad faith, malice or gross
negligence and on a subordinate officer or
employee who commits willful or negligent acts x
x x which are contrary to law, morals, public
policy and good customs even if he acted under
order or instructions of his superiors.
Third. The Sandiganbayan made the finding
that Tabuena had already converted and
misappropriated
the P55
Million
when
he
delivered the same to Mrs. Gimenez and not to
the PNCC, proceeding from the following
definitions/concepts ofconversion:
Conversion, as necessary element of offense of
embezzlement, being the fraudulent
appropriation to ones own use of anothers
property which does not necessarily mean to
ones personal advantage but every attempt by
one person to dispose of the goods of another
without right as if they were his own is conversion
to his own use. (Terry v. Water Improvement Dist.
No. 5 of Tulsa County, 64 p. 2d 904, 906, 179 Okl.
106)
- At p. 207, Words and Phrases,
Permanent Edition 9A.
Conversion is any interference subversive of the
right of the owner of personal property to enjoy
and control it. The gist of conversion is the
usurpation of the owners right of property, and
not the actual damages inflicted. Honesty of
purpose is not a defense. (Ferrera v. Parks, 23 p.
883, 885 19 Or. 141)
- At page 168, id.
xxxxxxxxx
The words convert and misappropriate connote
an act of using or disposing of anothers property
as if it were ones own. They presuppose that the
thing has been devoted to a purpose or use
different from that agreed upon. To appropriate to
ones own use includes not only conversion to
ones personal advantage but every attempt to
dispose of the property of another without right.

Likewise controlling is US v. Elvia[27] where it was

held that payments in good faith do not amount
to criminal appropriation, although they were People vs. Webber, 57 O.G.
made with insufficient vouchers or improper
evidence. In fact, the Dissenting Opinions p. 2933, 2937
reference to certain provisions in the revised

P a g e | 24

By placing them at the disposal of private persons

without due authorization or legal justification, he
became as guilty of malversation as if he had
personally taken them and converted them to his
own use.
People vs. Luntao, 50 O.G.
p. 1182, 1183[28]
We do not agree. It must be stressed that the
MARCOS Memorandum directed Tabuena to pay
immediately the Philippine National Construction
Corporation, thru this office, the sum of FIFTY
FIVE MILLION...., and that was what Tabuena
precisely did when he delivered the money to Mrs.
Gimenez. Such delivery, no doubt, is in effect
delivery to the Office of the President inasmuch as
Mrs.
Gimenez
was
Marcos
secretary
then. Furthermore, Tabuena had reasonable
ground to believe that the President was entitled
to receive the P55 Million since he was certainly
aware that Marcos, as Chief Executive, exercised
supervision and control
over government
agencies. And the good faith of Tabuena in having
delivered the money to the Presidents office (thru
Mrs. Gimenez), in strict compliance with the
MARCOS Memorandum, was not at all affected
even if it later turned out that PNCC never
received the money. Thus, it has been said that:

the P55
Million. In
the
cases
of US
v.
Acebedo[30] and Ang v. Sandiganbayan,[31] both
also involving the crime of malversation, the
accused therein were acquitted after the Court
arrived at a similar finding of non-proof of
conspiracy.In Acebedo,
therein
accused,
as
municipal president of Palo, Leyte, was
prosecuted for and found guilty by the lower court
of malversation after being unable to turn over
certain amounts to the then justice of the
peace. It appeared, however, that said amounts
were actually collected by his secretary Crisanto
Urbina. The Court reversed Acebedos conviction
after finding that the sums were converted by his
secretary Urbina without the knowledge and
participation of Acebedo. The Court said, which
we herein adopt:
No conspiracy between the appellant and his
secretary has been shown in this case, nor did
such conspiracy appear in the case against
Urbina. No guilty knowledge of the theft
committed by the secretary was shown on the
part of the appellant in this case, nor does it
appear that he in any way participated in the
fruits of the crime. If the secretary stole the
money in question without the knowledge or
consent of the appellant and without negligence
on his part, then certainly the latter can not be
convicted of embezzling the same money or any
part thereof.[32]

Good faith in the payment of public funds relieves

a public officer from the crime of malversation.

In Ang, accused-petitioner, as MWSS bill collector,

allowed part of his collection to be converted into
checks drawn in the name of one Marshall Lu, a
xxxxxxxxx
non-customer of MWSS, but the checks were
subsequently dishonored. Ang was acquitted by
Not every unauthorized payment of public funds
this Court after giving credence to his assertion
is malversation. There is malversation only if the
that the conversion of his collections into checks
public officer who has custody of public funds
were thru the machinations of one Lazaro Guinto,
should appropriate the same, or shall take or
another MWSS collector more senior to him. And
misappropriate or shall consent, or through
we also adopt the Courts observation therein,
abandonment or negligence shall permit any
other person to take such public funds. Where the that:
payment of public funds has been made in good
The petitioners alleged negligence in allowing the
faith, and there is reasonable ground to believe
that the public officer to whom the fund had been senior collector to convert cash collections into
checks may be proof of poor judgment or too
paid was entitled thereto, he is deemed to have
trusting a nature insofar as a superior officer is
acted in good faith, there is no criminal intent,
concerned but there must be stronger evidence to
and the payment, if it turns out that it is
show fraud, malice, or other indicia of
unauthorized, renders him only civilly but not
[29]
deliberateness in the conspiracy cooked up with
criminally liable.
Marshall Lu. The prosecution failed to show that
Fourth. Even assuming that the real and sole the petitioner was privy to the conspirational
purpose behind the MARCOS Memorandum was to scheme. Much less is there any proof that he
siphon-out public money for the personal benefit profited from the questioned acts. Any suspicions
of those then in power, still, no criminal liability of conspiracy, no matter how sincerely and
can be imputed to Tabuena. There is no showing strongly felt by the MWSS, must be converted into
beyond reasonable
that Tabuena had anything to do whatsoever with evidence before conviction
[33]
the execution of the MARCOS Memorandum. Nor doubt may be imposed.
is there proof that he profited from the felonious
scheme. In short, no conspiracy was established The principles underlying all that has been said
between Tabuena and the real embezzler/s of above in exculpation of Tabuena equally apply to

P a g e | 25

Peralta in relation to the P5 Million for which he is

being held accountable, i.e., he acted in good
faith
when
he,
upon
the
directive
of
Tabuena,helped facilitate the withdrawal of P5
Million of the P55 Million of the MIAA funds.

examination in the course of which the court

interjected a total of twenty-seven (27) questions
(more than four times Prosecutor Viernes
questions and even more than the combined total
of direct and cross-examination questions asked
by the counsels). After the defense opted not to
conduct any re-direct examination, the court
further asked a total of ten (10) questions.[37] The
trend intensified during Tabuenas turn on the
witness stand. Questions from the court after
Tabuenas cross-examination totalled sixty-seven
(67).[38] This is more than five times Prosecutor
Viernes questions on cross-examination (14), and
more than double the total of direct examination
and cross-examination questions which is thirtyone (31) [17 direct examination questions by Atty.
Andres plus 14 cross-examination questions by
Prosecutor Viernes]. In Peraltas case, the Justices,
after his cross-examination, propounded a total
of forty-one (41) questions.[39]

This is not a sheer case of blind and

misguided obedience, but obedience in good faith
of a duly executed order. Indeed, compliance to a
patently lawful order is rectitude far better than
contumacious disobedience. In the case at bench,
the order emanated from the Office of the
President and bears the signature of the President
himself, the highest official of the land. It carries
with it the presumption that it was regularly
issued. And on its face, the memorandum is
patently lawful for no law makes the payment of
an obligation illegal. This fact, coupled with the
urgent tenor for its execution constrains one to
act swiftly without question. Obedientia est legis
essentia. Besides, the case could not be detached
from the realities then prevailing. As aptly
But more importantly, we note that the
observed by Mr. Justice Cruz in his dissenting questions of the court were in the nature of cross
opinion:
examinations characteristic of confrontation,
probing and insinuation.[40] (The insinuating type
was best exemplified in one question addressed
We reject history in arbitrarily assuming that the
to Peralta, which will be underscored.) Thus we
people were free during the era and that the
judiciary was independent and fearless. We know beg to quote in length from the transcripts
pertaining to witness Monera, Tabuena and
it was not; even the Supreme Court at that time
Peralta. (Questions from the Court are marked
was not free. This is an undeniable fact that we
with asterisks and italicized for emphasis.)
can not just blink away. Insisting on the contrary
would only make our sincerity suspect and even
provoke scorn for what can only be described as
our incredible credulity.[34]
(MONERA)
But what appears to be a more compelling
reason for their acquittal is the violation of the
accuseds basic constitutional right to due
process. Respect for the Constitution, to borrow
once again Mr. Justice Cruzs words, is more
important than securing a conviction based on a
violation of the rights of the accused.[35] While
going over the records, we were struck by the
way the Sandiganbayan actively took part in the
questioning of a defense witness and of the
accused themselves.Tabuena and Peralta may not
have raised this as an error, there is nevertheless
no impediment for us to consider such matter as
additional basis for a reversal since the settled
doctrine is that an appeal throws the whole case
open to review, and it becomes the duty of the
appellate court to correct such errors as may be
found in the judgment appealed from whether
they are made the subject of assignments of error
or not.[36]
Simply consider the volume of questions
hurled by the Sandiganbayan. At the taking of the
testimony of Francis Monera, then Senior
Assistant
Vice
President
and
Corporate
Comptroller of PNCC, Atty. Andres asked sixteen
(16) questions on direct examination. Prosecutor
Viernes only asked six (6) questions on cross-

(As a background, what was elicited from his

direct examination is that the PNCC had
receivables from MIAA totalling P102,475,392.35,
and although such receivables were largely
billings for escalation, they were nonetheless all
due and demandable. What follows are the crossexamination of Prosecutor Viernes and the court
questions).
CROSS-EXAMINATION BY PROS. VIERNES
Q You admit that as shown by these
Exhibits 7 and 7-a, the items here
represent
mostly
escalation
billings. Were those escalation billings
properly
transmitted
to
MIA
authorities?
A I dont have the documents right now to
show that they were transmitted, but I
have a letter by our President, Mr.
Olaguer, dated July 6, 1988, following
up for payment of the balance of our
receivables from MIA, sir.
*AJ AMORES

P a g e | 26

*Q This matter of escalation costs, is

it not a matter for a conference
between the MIA and the PNCC
for the determination as to the
correct amount?
A I agree, your Honor. As far as we are
concerned, our billings are what we
deemed are valid receivables. And, in
fact, we have been following up for
payment.
*Q This
determination
of
the
escalation costs was it accepted
as the correct figure by MIA?
A I dont have any document as to the
acceptance by MIA, your Honor, but
our company was able to get a
document or a letter by Minister
Ongpin to President Marcos, dated
January 7, 1985, with a marginal note
or approval by former President
Marcos.
*PJ GARCHITORENA
*Q Basically, the letter of Mr. Ongpin
is to what effect?
A The subject matter is approval of the
supplementary contract and request
for partial deferment of payment for
MIA Development Project, your Honor.
*Q It has nothing to do with the
implementation of the escalation
costs?
A The details show that most of the
accounts refer to our escalations, your
Honor.
*Q Does
that
indicate
the
computation for escalations were
already billed or you do not have
any proof of that?
A Our subsidiary ledger was based on
billings to MIA and this letter of
Minister Ongpin appears to have
confirmed our billings to MIA, your
Honor.
*AJ AMORES
*Q Were there partial payments made
by MIA on these escalation
billings?
A Based on records available as of today,
the P102 million was reduced to
about P56.7 million, if my recollection
is correct, your Honor.
*PJ GARCHITORENA
*Q Were the payments made before
or after February 1986, since Mr.

Olaguer is a new entrant to your

company?
WITNESS
A The
payments were made after
December 31, 1985 but I think the
payments were made before the entry
of our President, your Honor. Actually,
the payment was in the form
of: assignments to State Investment of
about P23 million; and then there
was P17.8 million application against
advances made or formerly given; and
there were payments to PNCC of
about P2.6 million and there was a
payment
for
application
on
withholding and contractual stock of
about P1 million; that summed up
to P44.4 million all in all. And you
deduct that from the P102 million, the
remaining
balance
would
be
about P57 million.
*PJ GARCHITORENA
*Q What you are saying is that, for all
the payments made on this P102
million, only P2 million had been
payments in cash?
A Yes, your Honor.
*Q The rest had been adjustments of
accounts,
assignments
of
accounts,
or
offsetting
of
accounts?
A Yes, your Honor.
*Q This is as of December 31, 1985?
A The P102 million was as of December
31, 1985, your Honor, but the
balances is as of August 1987.
*Q We are talking now about the P44
million, more or less, by which the
basic
account
has
been
reduced. These
reductions,
whether
by
adjustment
or
assignment or actual delivery of
cash, were made after December
31, 1985?
WITNESS
A Yes, your Honor.
*Q And your records indicate when
these adjustments and payments
were made?
A Yes, your Honor.
*AJ AMORES
*Q You said there
were partial
payments
before
of
these
escalation billings. Do we get it

P a g e | 27

from you that there was an

admission of these escalation
costs as computed by you by MIA,
since there was already partial
payments?
A Yes, your Honor.
*Q How were these payments made
before February 1986, in case or
check, if there were payments
made?
A The P44 million payments was in the
form of assignments, your Honor.
*PJ GARCHITORENA
*Q The question of the Court is,
before December 31, 1985, were
there any liquidations made by
MIA against these escalation
billings?
A I have not reviewed the details of the
record, your Honor. But the ledger
card indicates that there were
collections on page 2 of the Exhibit
earlier presented. It will indicate that
there were collections shown by
credits indicated on the credit side of
the ledger.
*AJ AMORES
*Q Your ledger does not indicate the
manner of giving credit to the MIA
with respect to the escalation
billings. Was the payment in cash
or just credit of some sort before
December 31, 1985?
A Before December 31, 1985, the
reference of the ledger are official
receipts and I suppose these were
payments in cash, your Honor.
*Q Do you know how the manner of
this payment in cash was made by
MIA?
A I do not know, your Honor.
*PJ GARCHITORENA
*Q But your
that?

records

A Yes, your Honor.

*PJ GARCHITORENA
*Q Subsequent
thereto,
talking
merely
of
million?

we
are
about P44

A Yes, your Honor,

settlements.

subsequent

as

*Q After December 31, 1985?

A Yes, your Honor.
*Q And they have liquidated that, as
you described it, by way of
assignments,
adjustments,
by
offsets and by P2 million of cash
payment?
A Yes, your Honor.
*AJ AMORES
*Q Your
standard
operating
procedure before December 31,
1985 in connection with or in case
of
cash
payment,
was
the
payment in cash or check?
A I would venture to say it was by check,
your Honor.
*Q Which is the safest way to do it?
A Yes, your Honor.
*PJ GARCHITORENA
*Q And the business way?
A Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q You mentioned earlier about the letter
of former Minister Ongpin to the
former President Marcos, did you say
that that letter concurs with the
escalation billings reflected in Exhibits
7 and 7-a?
WITNESS

will

indicate

A The records will indicate that, your

Honor.
*Q Except that you were not asked to
bring them?
A Yes, your Honor.
*Q At all events, we are talking of
settlement or partial liquidation
prior to December 31, 1985?

A The Company or the management is of

the opinion that this letter, a copy of
which we were able to get, is a
confirmation of the acceptance of our
billings, sir.
Q This letter of Minister Ongpin is dated
January 7, 1985, whereas the entries
of escalation billings as appearing in
Exhibit 7 are dated June 30, 1985,
would you still insist that the letter of
January 1985 confirms the escalation
billings as of June 1985?

P a g e | 28

A The entries started June 30 in the ledger

card. And as of December 31, 1985, it
stood at P102 million after payments
were made as shown on the credit
side of the ledger. I suppose hat the
earlier amount, before the payment
was made, was bigger and therefore I
would venture to say that the letter of
January 7, 1985 contains an amount
that is part of the original contract
account. What are indicated in the
ledger are escalation billings.
*PJ GARCHITORENA
*Q We are talking about the letter of
Minister Ongpin?
A The letter of Minister Ongpin refers to
escalation billings, sir.

*Q From your records, for the month

of January 1986, there was no
payment
of
this
escalation
account by MIA?
WITNESS
A Yes, your Honor. But on page 2 of
Exhibit 7 there appears an assignment
of P23 million, that was on September
25, 1986.
*Q But that is already under
present administration?

the

A After February 1986, your Honor.

*Q But before February, in January
1986, there was no payment
whatsoever by MIA to PNCC?

*Q As of what date?

A Per record there is none appearing, your

Honor.

A The letter is dated January 7, 1985, your

Honor.

*PJ GARCHITORENA

PJ GARCHITORENA
Continue.
PROS. VIERNES
Q In accordance with this letter marked
Exhibit 7 and 7-a, there were credits
made in favor of MIA in July and
November
until
December
1985. These were properly credited to
the account of MIA?
WITNESS
A Yes, sir.
Q In 1986, from your records as appearing
in Exhibit 7-a, there were no payments
made to PNCC by MIA for the months
of January to June 1986?
A Yes, sir.
Q And neither was the amount of P22
million remitted to PNCC by MIA?
A Yes, sir.
PROS VIERNES

*Q The earliest payment, whether by

delivery of cash equivalent or of
adjustment of account, or by
assignment, or by offsets, when
did these payments begin?
A Per ledger card, there were payments in
1985, prior to December 31, 1985,
your Honor.
*Q After December 31, 1985?
A There appears also P23 million as credit,
that is a form of settlement, your
Honor.
*Q This is as of September 25?
A Yes, your Honor. There were subsequent
settlements. P23 million is just part of
the P44 million.
*Q And what you are saying is that,
PNCC passed the account to State
Investment. In other words, State
Investment bought the credit of
MIA?
A Yes, your Honor.

PJ GARCHITORENA

*Q And the amount of credit or

receivables sold by PNCC to State
Investment is P23 million?

Redirect?

A Yes, your Honor.

ATTY ANDRES

*Q Is there a payback agreement?

No redirect, your Honor.

*PJ GARCHITORENA

A I have a copy of the assignment to State

Investment but I have not yet
reviewed the same, your Honor.

Questions from the Court.

*AJ AMORES

*AJ AMORES

*Q As of now, is this obligation of

MIA, now NAIA, paid to PNCC?

That will be all, your Honor.

P a g e | 29

A There is still a balance of receivables

from MIA as evidenced by a collection
letter by our President dated July 6,
1988,
your
Honor. The
amount
indicated in the letter is P55 million.
PJ GARCHITORENA
Any clarifications you would like to make
Mr. Estebal?
ATTY ESTEBAL

is that, I did not notice the date placed

by Mrs. Gimenez.
*Q Are you telling us that this Exhibit
3 was incorrectly dated?
A Yes, your Honor.
*Q Because the third delivery was on
January 31st and yet the receipt
was dated January 30?
A Yes, your Honor.

None, your Honor.

PJ GARCHITORENA

*Q When was Exhibit 3 delivered

actually by Mrs. Gimenez?

Mr. Viernes?

A January 31st, your Honor.

PROS VIERNES

PJ GARCHITORENA

No more, your Honor.

Continue.

PJ GARCHITORENA

PROS VIERNES

The witness is excused. Thank you very

much Mr. Monera. x x x.[41]

Q You did not go to Malacaang on January

30, 1986?
A Yes, sir, I did not.

(TABUENA)
(In his direct examination, he testified that he
caused the preparation of the checks totalling P55
Million pursuant to the MARCOS Memorandum
and that he thereafter delivered said amount in
cash on the three (3) dates as alleged in the
information to Marcos private secretary Mrs.
Jimenez at her office at Aguado Street, who
thereafter issued a receipt. Tabuena also denied
having used the money for his own personal use.)
CROSS-EXAMINATION BY PROS. VIERNES
Q The amount of P55 million as covered
by the three (3) checks Mr. Tabuena,
were
delivered
on
how
many
occasions?
A Three times, sir.
Q And so, on the first two deliveries, you
did not ask for a receipt from Mrs.
Gimenez?

Q Do you know at whose instance this

Exhibit 3 was prepared?
A I asked for it, sir.
Q You asked for it on January 31, 1986
when you made the last delivery?
A Yes, sir.
Q Did you see this Exhibit 3 prepared in
the Office of Mrs. Gimenez?
A Yes, sir.
Q This
receipt
was
typewritten
in
Malacaang stationery. Did you see
who typed this receipt?
A No, sir. What happened is that, she went
to her room and when she came out
she gave me that receipt.
*PJ GARCHITORENA
*Q What you are saying is, you do not
know who typed that receipt?

A Yes, sir.

WITNESS

Q It was only on January 30, 1986 that this

receipt Exhibit 3 was issued by Mrs.
Gimenez?

A Yes, your Honor.

A Yes, sir.

*Q Are you making an assumption that

she typed that receipt?

*PJ GARCHITORENA

A Yes, your Honor, because she knows

how to type.

*Q So January 30 is the date of the

last delivery?

*Q Your assumption is that she typed it

herself?

A I remember it was on the 31st of

January, your Honor. What happened

A Yes, your Honor.

PJ GARCHITORENA

P a g e | 30

Proceed.

Q Was there another person inside the

office of Mrs. Gimenez when she gave
you this receipt Exhibit 3?

PROS. VIERNES
Q This receipt was prepared on January
31, although it is dated January 30?
A Yes, sir, because I was there on January
31st.
Q In what particular place did
Gimenez sign this Exhibit 3?

Mrs.

A In her office at Aguado, sir.

Q Did you actually see Mrs. Gimenez
signing this receipt Exhibit 3?
A No, sir, I did not. She was inside her
room.

A Nobody, sir.
Q I noticed in this receipt that the last
delivery of the sum of P55 million was
made
on
January
30. Do
we
understand from you that this date
January 30 is erroneous?
A Yes, sir, that January 30 is erroneous. I
noticed it only afterwards. This should
be January 31st, sir.
PROS VIERNES
That will be all, your Honor.

Q So, she was in her room and when she

came out of the room, she handed this
receipt to you already typed and
signed?

PJ GARCHITORENA

A Yes, sir.

No redirect, your Honor.

*AJ HERMOSISIMA

*PJ GARCHITORENA

*Q So, how did you know this was the

signature of Mrs. Gimenez?

Questions from the Court.

WITNESS
A Because I know her signature, your
Honor. I have been receiving letters
from her also and when she requests
for something from me. Her writing is
familiar to me.
*Q So, when the Presiding Justice asked
you as to how you knew that this was
the signature of Mrs. Gimenez and you
answered that you saw Mrs. Gimenez
signed it, you were not exactly
truthful?
A What I mean is, I did not see her sign
because she went to her room and
when she came out, she gave me that
receipt, your Honor.
PJ GARCHITORENA
That is why you have to wait for the
question to be finished and listen to it
carefully. Because when I asked you,
you said you saw her signed it. Be
careful Mr. Tabuena.

Redirect?
ATTY. ANDRES

*AJ HERMOSISIMA
*Q Why did you not ask for a receipt on
the first and second deliveries?
A Because I know that the delivery was
not complete yet, your Honor.
*PJ GARCHITORENA
*Q So you know that the total amount to
be delivered was P55 million?
A Yes, your Honor.
PJ GARCHITORENA
Response by Mr. Peralta to the testimony
of Mr. Tabuena.
ATTY. ESTEBAL
We are adopting the testimony of Mr.
Tabuena and we will also present the
accused, your Honor.
*AJ DEL ROSARIO

WITNESS

*Q From whom did you receive the

Presidents
memorandum
marked
Exhibit 1? Or more precisely, who
handed you this memorandum?

Yes, your Honor.

A Mrs. Fe Roa Gimenez, your Honor.

PJ GARCHITORENA

*Q Did you ask Mrs. Fe Gimenez for what

purpose the money was being asked?

Continue.
PROS VIERNES

A The money was in payment for the debt

of the MIA Authority to PNCC, your
Honor.

P a g e | 31

*Q If it was for the payment of such

obligation why was there no voucher
prepared to cover such payment? In
other words, why was the delivery of
the money not covered by any
voucher?Calrky
A The instruction to me was to give it to
the Office of the President, your
Honor.
*PJ GARCHITORENA
*Q Be that as it may, why was there no
voucher to cover this particular
disbursement?
A I was just told to bring it to the Office of
the President, your Honor.
*AJ DEL ROSARIO
*Q Was that normal procedure for you to
pay in cash to the Office of the
President for obligations of the MIAA
in payment of its obligation to another
entity?
WITNESS
A No, your Honor, I was just following the
Order to me of the President.
*PJ GARCHITORENA

*AJ DEL ROSARIO

*Q And what did you say in this discussion
you had with him?
A I just said, Yes, sir, I will do it/
*Q Were you the one who asked for a
memorandum to be signed by him?
A No, your Honor.
*Q After receiving that verbal instruction
for you to pay MIAAs obligation with
PNCC, did you not on your own accord
already prepare the necessary papers
and documents for the payment of
that obligation?
A He told me verbally in the telephone
that the Order for the payment of that
obligation
is
forthcoming,
your
Honor. I will receive it.
*Q Is this the first time you received such
a memorandum from the President?
A Yes, your Honor.
*Q And was that the last time also that
you received such a memorandum?
A Yes, your Honor.

A Yes, your Honor.

*Q Did you not inquire, if not from the

President, at least from Mrs. Gimenez
why this procedure has to be followed
instead of the regular procedure?

*AJ DEL ROSARIO

A: No, sir.

*Q Did you file any written protest with

the manner with which such payment
was being ordered?

*AJ DEL ROSARIO

*Q So the Order was out of the ordinary?

A No, your Honor.

*Q Why not?
A Because with that instruction of the
President to me, I followed, your
Honor.
*Q Before receiving this memorandum
Exhibit 1, did the former President
Marcos discuss this matter with you?
A Yes, your Honor.
*Q When was that?
A He called me up earlier, a week before
that, that he wants to me pay what I
owe the PNCC directly to his office in
cash, your Honor.
*PJ GARCHITORENA
*Q By I OWE, you mean the MIAA?
WITNESS
A Yes, your Honor.

*Q Why did you not ask?

A I was just ordered to do this thing, your
Honor.
*AJ HERMOSISIMA
*Q You said there was an I OWE YOU?
A Yes, your Honor.
*Q Where is that I OWE YOU now?
A All I know is that we owe PNCC the
amount of P99.1 million, your
Honor. MIAA owes PNCC that amount.
*Q Was this payment covered by receipt
from the PNCC?
A It was not covered, your Honor.
*Q So the obligation of MIAA to PNCC was
not, for the record, cancelled by virtue
of that payment?
A Based on the order to me by the former
President Marcos ordering me to pay
that amount to his office and then the

P a g e | 32

mechanics
Honor.

will

come

after,

your

*Q Is the PNCC a private corporation or

government entity?
A I think it is partly government, your
Honor.
*PJ GARCHITORENA

*Q The amount was not a joke, amounting

to P55 million, and you agreed to
deliver money in this amount through
a mere receipt from the private
secretary?
A I was ordered by the President, your
Honor.

*Q That is the former CDCP?

A Yes, your Honor.

*PJ GARCHITORENA

*AJ HERMOSISIMA
*Q Why were you not made to pay directly
to the PNCC considering that you are
the Manager of MIA at that time and
the PNCC is a separate corporation,
not an adjunct of Malacaang?
WITNESS

*Q There is no question and it can be a

matter of judicial knowledge that you
have been with the MIA for sometime?
A Yes, your Honor.
*Q Prior to 1986?
A Yes, your Honor.

A I was just basing it from the Order of

Malacaang to pay PNCC through the
Office of the President, your Honor.
*Q Do you know the President
Chairman of the Board of PNCC?

A I saw nothing wrong with that because

that is coming from the President,
your Honor.

or

A Yes, your Honor.

*Q How was the obligation of MIAA to
PNCC incurred. Was it through the
President or Chairman of the Board?

*Q Can you tell us when you became the

Manager of MIA?
A I became Manager of MIA way back, late
1968, your Honor.
*Q Long before the MIA was constituted as
an independent authority?
A Yes, your Honor.
*PJ GARCHITORENA

A PNCC was the one that constructed the

MIA, your Honor.

*Q And by 1986, you have been running

the MIA for 18 years?

*Q Was the obligation incurred through

the President or Chairman of the
Board or President of the PNCC? In
other words, who signed the contract
between PNCC and MIAA?

WITNESS

A Actually, we inherited this obligation,

your Honor. The one who signed for
this was the former Director of BAT
which is General Singzon. Then when
the MIA Authority was formed, all the
obligations of BAT were transferred to
MIAA. So the accountabilities of BAT
were transferred to MIAA and we are
the ones that are going to pay, your
Honor.

A No, your Honor.

*Q Why did you agree to pay to

Malacaang when your obligation was
with the PNCC?
A I was ordered by the President to do
that, your Honor.
*Q You agreed to the order of the
President notwithstanding the fact
that this was not the regular course or
Malacaang was not the creditor?

A Yes, your Honor.

*Q And prior to your joining the MIA, did
you ever work for the government?
*Q So, is it correct for us to say that your
joining the MIA in 1968 as its Manager
was your first employment with the
government?
A Yes, your Honor.
*Q While you were Manager of MIA, did
you have other subsequent concurrent
positions in the government also?
A I was also the Chairman of the Games
and Amusement Board, your Honor.
*Q But you were not the executive or
operating officer of the Games and
Amusement Board?
A I was, your Honor.
*Q As Chairman you were running the
Games and Amusement Board?
A Yes, your Honor.

P a g e | 33

*Q What else, what other government

positions did you occupy that time?
A I was also Commissioner of the Game
Fowl Commission, your Honor.

*Q And more than anything else the COA

is
ever
anxious
for
proper
documentation and proper supporting
papers?
A Yes, your Honor.

*PJ GARCHITORENA

*Q Sometimes, regardless of the amount?

*Q That is the cockfighting?

A Yes, your Honor.

WITNESS

*Q Any other entity?

*Q Now, you have P55 million which you

were ordered to deliver in cash, not to
the creditor of the particular credit,
and to be delivered in armored cars to
be acknowledged only by a receipt of
a personal secretary. After almost 18
years in the government service and
having had that much time in dealing
with COA people, did it not occur to
you to call a COA representative and
say, What will I do here?

A No more, your Honor.

A I did not, your Honor.

*Q As far as you can recall, besides being

the Manager of the MIA and later the
MIAA for approximately 18 years, you
also ran the Games and Amusement
Board as its executive officer?

*PJ GARCHITORENA

A Yes, your Honor.

WITNESS

*Q And you were a commissioner only of

the Game Fowl Commission?

A What I was going to do is, after those

things I was going to tell that delivery
ordered by the President to the COA,
your Honor.

A Yes, your Honor.

*Q Here, you were just a member of the
Board?
A Yes, your Honor.
*Q So you were
commission?

not

running

the

A Yes, your Honor.

A Yes, your Honor.

*Q Who was running the commission at
that time?
A I forgot his name, but he retired already,
your Honor.
*Q All of us who joined the government,
sooner or later, meet with our
Resident COA representative?
A Yes, your Honor.
*PJ GARCHITORENA
*Q And one of our unfortunate experience
(sic) is when the COA Representative
comes to us and says: Chairman or
Manager, this cannot be. And we learn
later on that COA has reasons for its
procedure and we learn to adopt to
them?
WITNESS
A Yes, your Honor.
*Q As a matter of fact, sometimes we
consider it inefficient, sometimes we
consider it foolish, but we know there
is reason in this apparent madness of
the COA and so we comply?
A Yes, your Honor.

*Q Did you not think that at least out of

prudence, you should have asked the
COA for some guidance on this matter
so that you will do it properly?

*Q That is true, but what happened here is

that you and Mr. Dabao or you and Mr.
Peralta signed requests for issuance of
Managers checks and you were
accommodated by the PNB Office at
Nichols
without
any
internal
documentation to justify your request
for Managers checks?
A Yes, your Honor.
*Q Of course we had no intimation at that
time that Mr. Marcos will win the
elections but even then, the Daily
Express, which was considered to be a
newspaper friendly to the Marcoses at
that time, would occasionally come
with so-called expose, is that not so?
A Yes, your Honor.
*Q And worst, you had the so-called
mosquito press that would always
come out with the real or imagined
scandal in the government and place
it in the headline, do you recall that?
A Yes, your Honor.
*PJ GARCHITORENA

P a g e | 34

*Q Under these circumstances, did you

not entertain some apprehension that
some disloyal employees might leak
you out and banner headline it in
some mosquito publications like the
Malaya at that time?

A As I have said, your Honor, I never

thought of that.
PJ GARCHITORENA
Thank you very much, Mr. Tabuena. You
are excused. x x x.[42]

WITNESS
A No, your Honor.

(PERALTA)

*PJ GARCHITORENA
I bring this up because we are trying to
find out different areas of fear. We are
in the government and we in the
government fear the COA and we also
fear the press. We might get dragged
into press releases on the most
innocent thing. You believe that?
A Yes, your Honor.
*Q And usually our best defense is that
these
activities
are
properly
documented?
A Yes, your Honor.
*Q In this particular instance, your
witnesses have told us about three (3)
different trips from Nichols to Aguado
usually late in the day almost in movie
style fashion. I mean, the money
being loaded in the trunk of your
official car and then you had a backup truck following your car?
A Yes, your Honor.
*Q Is that not quite a fearful experience to
you?
A I did not think of that at that time, your
Honor.
*PJ GARCHITORENA
*Q You did not think it fearful to be driving
along Roxas Boulevard with P25
million in the trunk of your car?
WITNESS
A We have security at that time your
Honor.
ATTY. ANDRES
Your Honor, the P25 million was in the
armored car; only P5 million was in
the trunk of his car.
*PJ GARCHITORENA
Thank you for the correction. Even P1
million only. How much more with P5
million inside the trunk of your car,
was that not a nervous experience?

(He testified on direct examination that he cosigned with Tabuena a memorandum request for
the issuance of the Managers Check for P5 Million
upon order of Tabuena and that he [Peralta] was
aware that MIAA had an existing obligation with
PNCC in the amount of around P27 Million. He
affirmed having accompanied Tabuena at the PNB
Villamor Branch to withdraw the P5 Million, but
denied having misappropriated for his own benefit
said amount or any portion thereof.)
CROSS-EXAMINATION BY PROS VIERNES
Q Will you please tell the Honorable Court
why was it necessary for you to cosign with Mr. Tabuena the request for
issuance of Managers check in the
amount of P5 million?
A At that time I was the Acting Financial
Services Manager of MIAA, sir, and all
withdrawals of funds should have my
signature because I was one of the
signatories at that time.
Q As Acting Financial Services Manager of
MIAA, you always co-sign with Mr.
Tabuena in similar requests for the
issuance of Managers checks by the
PNB?
A That is the only occasion I signed, sir.
Q Did you say you were ordered by Mr.
Tabuena to sign the request?
A Yes, sir, and I think the order is part of
the exhibits. And based on that order,
I co-signed in the request for the
issuance of Managers check in favor
of Mr. Luis Tabuena.
PROS VIERNES
Q Was there a separate written order for
you to co-sign with Mr. Tabuena?
WITNESS
A Yes, sir, an order was given to me by Mr.
Tabuena.
*PJ GARCHITORENA
Was that marked in evidence?
WITNESS

P a g e | 35

Yes, your Honor.

Ongpin. Did you personally see that

request?

*PJ GARCHITORENA
What exhibit?
WITNESS
I have here a copy, your Honor. This was
the order and it was marked as exhibit
N.

A When this order coming from Mr.

Tabuena was shown to me, I was
shown a copy, sir. I have no file
because I just read it.
Q It was Mr. Tabuena who showed you the
letter of Minister Ongpin?
A Yes, sir.

PROS VIERNES

*PJ GARCHITORENA

It was marked as Exhibit M, your Honor.

And that will be Exhibit?

Q How did you know there was an existing

liability of MIAA in favor of PNCC at
that time?

ATTY. ANDRES

A Because prior to this memorandum of

Mr. Tabuena, we prepared the financial
statement of MIAA as of December 31,
1985 and it came to my attention that
there was an existing liability of
around P27,999,000.00, your Honor.
Q When was that Financial Statement
prepared?
A I prepared it around January 22 or 24,
something like that, of 1986, sir.
Q Is it your usual practice to prepare the
Financial Statement after the end of
the year within three (3) weeks after
the end of the year?
A Yes, sir, it was a normal procedure for
the MIAA to prepare the Financial
Statement on or before the 4th Friday
of the month because there will be a
Board of Directors Meeting and the
Financial Statement of the prior month
will be presented and discussed
during the meeting.
*PJ GARCHITORENA
*Q This matter of preparing Financial
Statement was not an annual activity
but a monthly activity?
A Yes, your Honor.
*Q This Financial Statement you prepared
in January of 1986 recapitulated the
financial condition as of the end of the
year?
A Yes, your Honor.
PJ GARCHITORENA
Continue.

Exhibit 2 and 2-A, your Honor.

PROS VIERNES
Q You also stated that you were with Mr.
Tabuena when you withdrew the
amount of P5 million from the PNB
Extension Office at Villamor?
A Yes, sir.
Q Why was it necessary for you to go with
him on that occasion?
A Mr. Tabuena requested me to do the
counting by million, sir. So what I did
was to bundle count the P5 million
and it was placed in two (2) peerless
boxes.
Q Did you actually participate in the
counting of the money by bundles?
A Yes, sir.
Q Bundles of how much per bundle?
A If

I remember right, the bundles

consisted of P100s and P50s, sir.

Q No P20s and P10s?

A Yes, sir, I think
and P50s.

it

was

only P100s

*PJ GARCHITORENA
*Q If there were other denominations, you
can not recall?
A Yes, your Honor.
PROS VIERNES
Q In how many boxes were those bills
placed?
A The P5 million were placed in two (2)
peerless boxes, sir.

PROS VIERNES

Q And you also went with Mr. Tabuena to

Aguado?

Q You made mention of a request for

Escalation Clause by former Minister

A No, sir, I was left behind at Nichols. After

it was placed at the trunk of the car of

P a g e | 36

Mr. Tabuena, I was left behind and I

went back to my office at MIA.

based on the normal procedure, your

Honor.

Q But the fact is that, this P5 million was

withdrawn at passed 5:00 oclock in
the afternoon?

*Q And, as Acting Financial Services

Manager, you were aware that all
disbursements should be covered by
vouchers?

A I started counting it I think at around

4:30, sir. It was after office hours. But
then I was there at around 4:00 oclock
and we started counting at around
4:30 p.m. because they have to place
it in a room, which is the office of the
Manager at that time.
Q And Mr. Tabuena left for Malacaang after
5:00 oclock in the afternoon of that
date?
A Yes, sir. After we have counted the
money, it was placed in the peerless
boxes and Mr. Tabuena left for
Malacaang.
PROS VIERNES
Q And you yourself, returned to your office
at MIA?
WITNESS
A Yes, sir.
Q Until what time do you hold office at the
MIA?
A Usually I over-stayed for one (1) or two
(2) hours just to finish the paper works
in the office, sir.
Q So, even if it was already after 5:00
oclock in the afternoon, you still went
back to your office at MIA?
A Yes, sir.
PROS VIERNES

A Yes, your Honor, the payments should

be covered by vouchers. But then,
inasmuch as what we did was to
prepare a request to the PNB, then
this can be covered by Journal
Voucher also.
*Q Was such payment of P5
covered by a Journal Voucher?

million

A Yes, your Honor.

*Q Did you present that Journal Voucher
here in Court?
A We have a copy, your Honor.
*Q Do you have a copy or an excerpt of
that Journal Voucher presented in
Court to show that payment?
A We have a copy of the Journal Voucher,
your Honor.
*Q Was this payment of P5 million ever
recorded in a cashbook or other
accounting books of MIAA?
A The payment of P5 million was recorded
in a Journal Voucher, your Honor.
*PJ GARCHITORENA
*Q In other words, the recording was
made directly to the Journal?
WITNESS
A Yes, your Honor.

PJ GARCHITORENA

*Q There
are
no
other
separate
documents as part of the application
for Managers Check?

Redirect?

A Yes, your Honor, there was none.

ATTY. ESTEBAL

*AJ DEL ROSARIO

No redirect, your Honor.

*Q After the payment was made, did your

office receive any receipt from PNCC?

That will be all, your Honor.

*PJ GARCHITORENA
Questions from the Court.
*AJ DEL ROSARIO
*Q Did you not consider it as odd that
your obligation with the PNCC had to
be paid in cash?
WITNESS
A Based on the order of President Marcos
that we should pay in cash, it was not

A I was shown a receipt by Mr. Tabuena,

the receipt given by Mrs. Fe Roa
Gimenez, your Honor. Inasmuch as the
payment should be made through the
Office of the president, I accepted the
receipt given by Mrs. Fe Gimenez to
Mr. Tabuena.

P a g e | 37

*Q After receiving that receipt, did you

prepare the necessary supporting
documents, vouchers, and use that
receipt as a supporting document to
the voucher?
A Your Honor, a Journal Voucher was
prepared for that.
*Q How about a disbursement voucher?
A Inasmuch as this was a request for
Managers check, no disbursement
voucher was prepared, your Honor.
*AJ DEL ROSARIO
*Q Since the payment was made on
January 31, 1986, and that was very
close to the election held in that year,
did you not entertain any doubt that
the amounts were being used for
some other purpose?
ATTY. ESTEBAL
With due respect to the Honorable Justice,
we are objecting to the question on
the ground that it is improper.
*AJ DEL ROSARIO

think it proper to have this transaction

covered by a disbursement voucher?
WITNESS
A Based on my experience, payments out
of cash can be made through cash
vouchers, or even though Journal
Vouchers, or even through credit
memo, your Honor.
*AJ HERMOSISIMA
*Q This was an obligation of the MIAA to
the PNCC. Why did you allow a
disbursement by means of check in
favor of Mr. Luis Tabuena, your own
manager?
A We based the payment on the order of
Mr. Tabuena because that was the
order of President Marcos to pay PNCC
through the Office of the President
and it should be paid in cash, your
Honor.
*Q You are supposed to pay only on legal
orders. Did you consider that legal?
ATTY. ESTEBAL

*PJ GARCHITORENA

With due respect to the Honorable Justice,

the question calls for a conclusion of
the witness.

What is the ground for impropriety?

*PJ GARCHITORENA

ATTY. ESTEBAL

Considering that the witness is an expert,

witness may answer.

I will withdraw the question.

This is not covered in the direct

examination, and secondly, I dont
think there was any basis, your Honor.
*PJ GARCHITORENA
Considering the withdrawal of the
question, just make the objection on
record.
*AJ HERMOSISIMA
*Q As a Certified Public Accountant and
Financial Manager of the MIAA, did
you not consider it proper that a check
be issued only after it is covered by a
disbursement voucher duly approved
by the proper authorities?
A Your Honor, what we did was to send a
request for a Managers check to the
PNB based on the request of Mr.
Tabuena and the order of Mr. Tabuena
was based on the Order of President
Marcos.
*PJ GARCHITORENA
*Q In your capacity as Financial Services
Manager of the MIAA, did you not

WITNESS
A The order of president Marcos was legal
at that time because the order was to
pay PNCC the amount of P5 million
through the Office of the President
and it should be paid in cash, your
Honor. And at that time, I know for a
fact also that there was an existing
P.D. wherein the President of the
Republic of the Philippines can
transfer funds from one office to
another and the PNCC is a quasi
government entity at that time.
*AJ HERMOSISIMA
*Q Are you saying that this transaction
was made on the basis of that P.D.
which you referred to?
A I am not aware of the motive of the
President, but then since he is the
President of the Philippines, his order
was to pay the PNCC through the
Office of the President, your Honor.
*Q As Financial Manager, why did you
allow a payment in cash when

P a g e | 38

ordinarily payment of an obligation of

MIAA is supposed to be paid in check?
A I caused the payment through the name
of Mr. Tabuena because that was the
order of Mr. Tabuena and also he
received an order coming from the
President of the Philippines at that
time, your Honor.
*PJ GARCHITORENA
*Q Mr. Peralta, are not Journal Vouchers
merely entries in the Journals to
correct certain statements of accounts
earlier made in the same journal?
In other words, really what you are telling
us is that, a Journal Voucher is to
explain a transaction was otherwise
not recorded.
WITNESS
A Yes, your Honor.
*Q Therefore, when you said that a Journal
Voucher here is proper, you are saying
it is proper only because of the
exceptional
nature
of
the
transactions?
A Yes, your Honor.
*Q In other words, as an Accountant, you
would not normally authorize such a
movement of money unless it is
properly documented?
ATTY. ESTEBAL
With due respect to the Honorable
Presiding Justice, I think the question
is misleading because what the
witness stated is...
*PJ GARCHITORENA
Be careful in your objection because the
witness understands the language you
are speaking, and therefore, you
might be coaching him.
ATTY. ESTEBAL
No, your Honor. I am also an accountant
that is why I could say that...

Overruled, may answer.

WITNESS
A The transaction was fully documented
since we have the order of the
General Manager at that time and the
order of President Marcos, your Honor.
*Q Are you saying the Order of the
General Manager is an adequate basis
for the movement of money?
A Yes, your Honor, because at that time
we have also a recorded liability
of P27 million.
*Q We are not talking of whether or not
there was a liability. What we are
saying is, is the order of the General
Manager by itself adequate with no
other supporting papers, to justify the
movement of funds?
A Yes, your Honor. The order of Mr. Luis
Tabuena was based on our existing
liability of P27,931,000.00, inasmuch
as we have that liability and I was
shown the order of President Marcos
to pay P5 million through the Office of
the President, I considered the order
of Mr. Luis Tabuena, the order of
President Marcos and also the existing
liability of P27 million sufficient to pay
the amount of P5 million. Inasmuch as
there is also an escalation clause
of P99.1 million, the payment of P5
million is fully covered by those
existing documents.
*PJ GARCHITORENA
You keep flooding us with details we are
not asking for. We are not asking you
whether or not there was valid
obligation. We are not asking you
about the escalation clause. We are
asking you whether or not this
particular order of Mr. Tabuena is an
adequate
basis
to
justify
the
movement of funds?
WITNESS

Please be simple in your objection.

When we pay, your Honor, we always look

for the necessary documents and at
that time I know for a fact that there
was this existing liability.

ATTY. ESTEBAL

*PJ GARCHITORENA

The question is misleading on the ground

that what the witness stated earlier is
that the Journal Voucher in this
particular case was supported, your
Honor.

When we ask questions and when we

answer them, we must listen to the
question being asked and not to
whatever you wanted to say. I know
you are trying to protect yourself. We
are aware of your statement that
there are all of these memoranda.

*PJ GARCHITORENA

*PJ GARCHITORENA

P a g e | 39

*Q By your disbursement of such amount,

you are saying that the order of Mr.
Tabuena by itself is adequate?

Mr. Estebal, will you include in your

memorandum what are the Decrees
authorizing this movement of funds?

WITNESS

ATTY. ESTEBAL

A As far as I am concerned, your Honor,

inasmuch as we have a liability and I
was shown the Order of President
Marcos to pay PNCC through his office,
I feel that the order of the General
Manager, the order of President
Marcos, and also the memorandum of
Minister Ongpin are sufficient to cause
the payment of P5 million.

Yes, your Honor.

*PJ GARCHITORENA
*Q This
Presidential
Decree
which
authorizes the President to transfer
funds from one department to
another, is this not the one that refers
to the realignment of funds insofar as
the Appropriation Act is concerned?
WITNESS
A Because at that time, your Honor, I have
knowledge that the President is
authorized through a Presidential
Decree to transfer government funds
from one office to another.
*PJ GARCHITORENA
*Q Under the Appropriation Act. Are
payments of debts of the MIAA
covered by the Appropriation Act?
A I think the liability was duly recorded
and appropriations to pay the amount
is.....

*PJ GARCHITORENA
*Q It is true that President Marcos was the
President, but he was not an officer of
the MIAA, was he?
A No, your Honor.
*Q In fact, for purposes of internal control,
you have different officers and
different officials in any company
either government or private, which
are supposed to check and balance
each other, is it not?
A Yes, your Honor.
*Q So that when disbursements of funds
are made, they are made by authority
of not only one person alone so that
nobody will restrain him?
A Yes, your Honor.
*Q These checks and balances exist in an
entity so that no one person can
dispose of funds in any way he likes?
A Yes, your Honor.
*Q And in fact, the purpose for having two
(2) signatories to documents and
negotiable documents is for the same
purpose?
A Yes, your Honor.

(interrupted)

*PJ GARCHITORENA

*PJ GARCHITORENA

*Q In other words, the co-signatories

counter check each other?

*Q Tell me honestly, is your answer

responsive to the question or are you
just throwing words at us in the hope
that we will forget what the question
is?
A No, your Honor.
*Q Are you telling us that the debts
incurred by MIAA are covered by the
Appropriations Act so that the
payment of this debt would be in the
same level as the realignment of
funds authorized the President? Or are
you telling as you did not read the
Decree?
A I was aware of that Decree, your Honor.
*PJ GARCHITORENA

WITNESS
A Yes, your Honor.
*Q In your case, you would be the counter
check for Mr. Tabuena?
A Yes, your Honor.
*Q In other words, even if Mr. Tabuena is
the Manager, you as Financial Services
Manager and as counter signatory are
in a position to tell Mr. Tabuena, I am
sorry, you are my superior but this
disbursement is not proper and,
therefore, I will not sign it., if in your
opinion the disbursement is not
proper?
A Yes, your Honor.

P a g e | 40

*Q Therefore, as co-signatory, you are

expected to exercise your judgment
as to the propriety of a particular
transaction?
A Yes, your Honor.
*Q And this is something you know by the
nature of your position and because
you are a Certified Public Accountant?
A Yes, your Honor.
*AJ DEL ROSARIO
*Q You admit that the payment of P5
million and P50 million were unusual
in the manner with which they were
disposed?
A Yes, your Honor.
*Q Did you submit a written protest to the
manner in which such amount was
being disposed of?
A A written protest was not made, your
Honor, but I called the attention of Mr.
Tabuena that since this payment was
upon the order of President Marcos,
then I think as President he can do
things which are not ordinary.
*Q If you did not prepare a written protest,
did
you
at
least
prepare
a
memorandum for the record that this
was an extra-ordinary transaction?

certainly denied Tabuena and Peralta when the

court, with its overzealousness, assumed the dual
role of magistrate and advocate. In this
connection, the observation made in the
Dissenting Opinion to the effect that the majority
of this Court was unduly disturbed with the
number of court questions alone, is quite
inaccurate. A substantial portion of the TSN was
incorporated in the majority opinion not to focus
on numbers alone, but more importantly to show
that the court questions were in the interest of
the prosecution and which thus depart from that
common standard of fairness and impartiality. In
fact, it is very difficult to be, upon review of the
records, confronted with numbers without
necessarily realizing the partiality of the
Court.In US v. De Sisto (2 Cir., 1961, 289 F 2d
833), for example, a new trial was required
because the trial judge, as in this case, indulged
in extensive questioning of defendant and his
witnesses, and the reviewing court also had to
amplify on numbers to bolster this. It was pointed
out in the De Sisto case that the judge asked
3,115 questions of all witnesses, the prosecutor
asked but 1,381, defense counsel 3,330. The
judges questions to the defendant De Sisto
totalled 306, the prosecutors 347, and the
defense counsels, 201. After referring to these
figures, the court stated:

. . . It is indeed an impressive proportion, but no

such mathematical computation is of itself
determinative. However, taking all this in
conjunction with the long and vigorous
A I called the attention of Mr. Tabuena that
examination of the defendant himself by the
this was an extra-ordinary transaction
judge, and the repeated belittling by the judge of
and no written note, your Honor.
defendants efforts to establish the time that Fine
left the pier, we fear that in its zeal for arriving at
PJ GARCHITORENA
the facts the court here conveyed to the jury too
Thank you very much Mr. Peralta, you are
strong an impression of the courts belief in the
excused. x x x.[43]
defendants probable guilt to permit the jury freely
This Court has acknowledged the right of a to perform its own function of independent
trial judge to question witnesses with a view to determination of the facts. x x x
satisfying his mind upon any material point which
The majority believes that the interference by
presents itself during the trial of a case over
[44]
which he presides.
But not only should his the Sandiganbayan Justices was just too excessive
examination
be
limited
to that it cannot be justified under the norm applied
asking clarificatory questions,[45] the right should to a jury trial, or even under the standard
be sparingly and judiciously used; for the rule is employed in a non-jury trial where the judge is
that the court should stay out of it as much as admittedly given more leeway in propounding
possible, neither interfering nor intervening in the questions to clarify points and to elicit additional
conduct of the trial.[46] Here, these limitations relevant evidence. At the risk of being repetitious,
were not observed. Hardly in fact can one avoid we will amplify on this via some specific
the impression that the Sandiganbayan had allied examples. Based on the evidence on record, and
itself with, or to be more precise, had taken the on the admission of Tabuena himself, the P55
cudgels for the prosecution in proving the case million was delivered to the Presidents Office thru
against Tabuena and Peralta when the Justices Mrs. Gimenez, in obedience to the Presidential
cross-examined the witnesses, their cross- directive. One Sandiganbayan Justice, however,
examinations supplementing those made by hurled the following questions to Peralta:
Prosecutor Viernes and far exceeding the latters
AJ DEL ROSARIO
questions in length. The cold neutrality of an
impartial judge requirement of due process was

P a g e | 41

Q: Since the payment was made on

January 31, 1986, and that was very
close to the election held in that year,
did you not entertain any doubt that
the
amounts
were being used for
some other purposes?
ATTY. ESTEBAL
With due respect to the Honorable Justice,
We are objecting to the question on th
e ground that it is
improper.
AJ DEL ROSARIO
I will withdraw the question.
PJ GARCHITORENA
What is the ground for impropriety?
ATTY. ESTEBAL
This is not covered in the direct examinati
on,
and secondly, I
dont
think
there was any basis, Your Honor.
PJ GARCHITORENA
Considering the withdrawal of the question, just m
ake the objection on record.
Nothing from the preceding questions of
counsels or of the court would serve as basis for
this question. How then, can this be considered
even relevant? What is the connection between
the payment made to the Presidents office and
the then forthcoming presidential snap election?
In another instance, consider the following
questions of Presiding Justice Garchitorena:
*PJ GARCHITORENA
*Q Mr. Peralta, are not Journal Vouchers
merely entries in the Journals to
correct certain statements of accounts
earlier made in the same journal?
xxx
*Q In other words, really what you are
telling us is that, a Journal Voucher is
to explain a transaction was otherwise
not recorded.
xxx
*Q Therefore, when you said that a Journal
Voucher here is proper, you are saying
it is proper only because of the
exceptional
nature
of
the
transactions?
xxx

*Q In other words, as an Accountant, you

would not normally authorize such a
movement of money unless it is
properly documented?
ATTY. ESTEBAL
With due respect to the Honorable
Presiding Justice, I think the question
is misleading because what the
witness stated is...
*PJ GARCHITORENA
Be careful in your objection because the
witness understands the language you
are speaking, and therefore, you
might be coaching him.
ATTY. ESTEBAL
No, your Honor. I am also an accountant
that is why I could say that...
*PJ GARCHITORENA
Please be simple in your objection.
ATTY. ESTEBAL
The question is misleading on the ground
that what the witness stated earlier is
that the Journal Voucher in this
particular case was supported, your
Honor.
*PJ GARCHITORENA
Overruled, may answer.
WITNESS
A The transaction was fully documented
since we have the order of the
General Manager at that time and the
order of President Marcos, your Honor.
*Q Are you saying the Order of the
General Manager is an adequate basis
for the movement of money?
*Q We are not talking of whether or not
there was a liability. What we are
saying is, is the order of the General
Manager by itself adequate with no
other supporting papers, to justify the
movement of funds?
*PJ GARCHITORENA
You keep flooding us with details we are
not asking for. We are not asking you
whether or not there was valid
obligation. We are not asking you
about the escalation clause. We are
asking you whether or not this
particular order of Mr. Tabuena is an
adequate
basis
to
justify
the
movement of funds?
*PJ GARCHITORENA

P a g e | 42

When we ask questions and when we

answer them, we must listen to the
question being asked and not to
whatever you wanted to say. I know
you are trying to protect yourself. We
are aware of your statement that
there are all of these memoranda.

*Q So that when disbursements of funds

are made, they are made by authority
of not only one person alone so that
nobody will restrain him?
*Q These checks and balances exist in an
entity so that no one person can
dispose of funds in any way he likes?

*Q By your disbursement of such amount,

you are saying that the order of Mr.
Tabuena by itself is adequate?

*Q And in fact, the purpose for having two

(2) signatories to documents and
negotiable documents is for the same
purpose?

*PJ GARCHITORENA
*Q This
Presidential
Decree
which
authorizes the President to transfer
funds from one department to
another, is this not the one that refers
to the realignment of funds insofar as
the Appropriation Act is concerned?

*PJ GARCHITORENA

*PJ GARCHITORENA

*Q In other words, even if Mr. Tabuena is

the Manager, you as Financial Services
Manager and as counter signatory are
in a position to tell Mr. Tabuena, I am
sorry, you are my superior but this
disbursement is not proper and,
therefore, I will not sign it., if in your
opinion the disbursement is not
proper?

*Q In other words, the co-signatories

counter check each other?
*Q In your case, you would be the counter
check for Mr. Tabuena?

*Q Under the Appropriation Act. Are

payments of debts of the MIAA
covered by the Appropriation Act?
*PJ GARCHITORENA
*Q Tell me honestly, is your answer
responsive to the question or are you
just throwing words at us in the hope
that we will forget what the question
is?

*Q Therefore, as co-signatory, you are

expected to exercise your judgment
as to the propriety of a particular
transaction?

xxx
*Q Are you telling us that the debts
incurred by MIAA are covered by the
Appropriations Act so that the
payment of this debt would be in the
same level as the realignment of
funds authorized the President? Or are
you telling as you did not read the
Decree?
*PJ GARCHITORENA
Mr. Estebal, will you include in your
memorandum what are the Decrees
authorizing this movement of funds?
ATTY. ESTEBAL
Yes, your Honor.
*PJ GARCHITORENA
*Q It is true that President Marcos was the
President, but he was not an officer of
the MIAA, was he?
*Q In fact, for purposes of internal control,
you have different officers and
different officials in any company
either government or private, which
are supposed to check and balance
each other, is it not?

*Q And this is something you know by the

nature of your position and because
you are a Certified Public Accountant?
[47]

How can these questions be considered

clarificatory when they clearly border more on
cross-examination
questions? Thus,
the
Dissenting Opinions focus on the distinction
between the two kinds of trial to justify the
Sandiganbayans active participation in the
examination of petitioners Tabuena and Peralta
and witness Monera, with due respect, appears
insignificant to this case. Let it, therefore, be
emphasized anew that:
A trial judge should not participate in the
examination of witnesses as to create the
impression that he is allied with the prosecution.
[48]

We doubt not that the sole motive of the learned

judge was to ascertain the truth of the
transaction, but it is never proper for a judge to
discharge the duties of a prosecuting
attorney. However anxious a judge may be for the
enforcement of the law, he should always
remember that he is as much judge in behalf of
the defendant accused of crime, and whose

P a g e | 43

liberty is in jeopardy, as he is judge in behalf of

the state, for the purpose of safeguarding the
interests of society.[49]
Ordinarily it is not good practice for the presiding
judge himself to examine witnesses at length. The
circumstances may be such in a given case as to
justify the court in so doing....This court, however,
has more than once said that the examination of
witnesses is the more appropriate function of
counsel, and the instances are rare and the
conditions exceptional which will justify the
presiding judge in conducting an extensive
examination. It is always embarrassing for
counsel to object to what he may deem improper
questions by the court. Then, in conducting a
lengthy examination, it would be almost
impossible for the judge to preserve a judicial
attitude. While he is not a mere figurehead or
umpire in a trial, and it is his duty to see that
justice is done, he will usually not find it
necessary to conduct such examinations. The
extent to which this shall be done must largely be
a matter of discretion, to be determined by the
circumstances of each particular case, but in so
doing he must not forget the function of the judge
and assume that of an advocate....[50]

proper presentation of the cause, or the

ascertainment of the truth in respect thereto. [53]
The impartiality of the judge his avoidance of the
appearance of becoming the advocate of either
one side or the other of the pending controversy
is a fundamental and essential rule of special
importance in criminal cases....[54]
Our courts, while never unmindful of their primary
duty to administer justice, without fear or favor,
and to dispose of these cases speedily and in as
inexpensive a manner as is possible for the court
and the parties, should refrain from showing any
semblance of one-sided or more or less partial
attitude in order not to create any false
impression in the minds of the litigants. For
obvious reasons, it is the bounden duty of all to
strive for the preservation of the peoples faith in
our courts.[55]

Time and again this Court has declared that due

process requires no less than the cold neutrality
of an impartial judge. Bolstering this requirement,
we have added that the judge must not only be
impartial but must also appear to be impartial, to
give added assurance to the parties that his
decision will be just. The parties are entitled to no
While it is true that the manner in which a witness less than this, as a minimum guaranty of due
shall be examined is largely in the discretion of
process.[56]
the trial judge, it must be understood that we
have not adopted in this country the practice of
We are well aware of the fear entertained by
making the presiding judge the chief inquisitor. It some that this decision may set a dangerous
is better to observe our time-honored custom of
precedent in that those guilty of enriching
orderly judicial procedure, even at the expense of themselves at the expense of the public would be
occasional delays....The judge is an important
able to escape criminal liability by the mere
figure in the trial of a cause, and while he has the expedient of invoking good faith. It must never be
right, and it is often his duty, to question
forgotten, however, that we render justice on a
witnesses to the end that justice shall prevail, we case to case basis, always in consideration of the
can conceive of no other reason, for him to take
evidence that is presented. Thus, where the
the trial of the cause out of the hands of counsel. evidence warrants an acquittal, as in this case, we
[51]
are mandated not only by the dictates of law but
likewise of conscience to grant the same. On the
The examination of witnesses is the more
other hand, it does not follow that all those
appropriate function of counsel, and it is believed similarly accused will necessarily be acquitted
the instances are rare and the conditions
upon reliance on this case as a precedent. For the
exceptional in a high degree which will justify the decision in this case to be a precedent, the
presiding judge in entering upon and conducting
peculiar circumstances and the evidence that led
an extended examination of a witness, and that
to the petitioners acquittal must also be present
the exercise of a sound discretion will seldom
in subsequent cases.
deem such action necessary or advisable.[52]
Furthermore,
as
between
a
mere
apprehension of a dangerous precedent and an
He [the judge] may properly intervene in a trial of
actual violation of constitutionally enshrined
a case to promote expedition, and prevent
rights, it is definitely the latter that merits our
unnecessary waste of time, or to clear up some
immediate attention. For the most dangerous
obscurity, but he should bear in mind that his
precedent arises when we allow ourselves to be
undue interference, impatience, or participation in
carried away by such fears so that it becomes
the examination of witnesses, or a severe attitude
lawful to sacrifice the rights of an accused to calm
on his part toward witnesses, especially those
the fearful. In our eagerness to bring to justice the
who are excited or terrified by the unusual
malefactors of the Marcos regime, we must not
circumstances of a trial, may tend to prevent the
succumb to the temptation to commit the

P a g e | 44

greatest injustice of visiting the sins of the payment

of
monies
by
petitioner. In
so
wrongdoers upon an innocent.
concluding,
the Sandiganbayan again
clearly
misapprehended
the
Ongpin
and
Marcos
WHEREFORE, in view of the foregoing, herein
Memoranda, and the ledger of PNCC.
petitioners Luis A. Tabuena and Adolfo M. Peralta
C
are hereby ACQUITTED of the crime of
Erred and committed reviewable error in ruling
malversation as defined and penalized under
that petitioner was in bad faith when he complied
Article 217 of the Revised Penal Code. The
with the presidential order to pay; in thus
Sandiganbayan Decision of October 12, 1990 and
concluding
the Sandiganbayan indulged
in
the Resolution dated December 20, 1991 are
speculations and conjectures (Joaquin vs. Navarro,
REVERSED and SET ASIDE.
93 Phil. 257), or otherwise went beyond the issues
(Evangelista vs. Alco, L-11139, April 23, 1958);
SO ORDERED.
the Sandiganbayan also erred in not ruling that
Narvasa, C.J., Regalado, Bellosillo, Vitug, petitioner is entitled to justifying circumstance
Kapunan, Mendoza, and Torres, JJ., concur.
under Par. 6, Art. 11, and/or the exempting
Padilla,
Davide,
Romero, circumstance provided under Pars. 5 and 6 of Art.
Puno, and Panganiban, JJ., dissent.
12 of the Revised Penal Code.
Hermosisima, Jr., J., took no part being a D
signatory to SB decision.
Erred and committed reviewable error in ruling
that petitioner was unable to account for the
[1]
so
doing,
Taken under Section 7 of P.D. 1606, as amended money. In
the
Sandiganbayan
contradicted
the
ruling
in
(the Sandiganbayan Law), Section 1, Rule
U.S.
vs.
Catolico,
18
Phil.
504.
It
also
erred
in
XIX of the Revised Rules of the
petitioner
accountable
for
Sandiganbayan and Rule 45 of the Rules of holding
acts
not
charged
in
the
amended
informations,
Court. The
petitions
were
ordered
consolidated by the Court in an En and in so doing convicted him without jurisdiction.
E
Banc Resolution dated October 1, 1992.
Erred and committed reviewable error in ruling
[2]
Promulgated on October 22, 1990; Rendered by that petitioner was not entitled to immunity as
the First Division then composed of Justices provided by Sec. 17, Article VII of the 1973
Garchitorena
(ponente),
Hermosisima Constitution. The Sandiganbayan therefore had no
(now Associate Justice of this Court) and jurisdiction to try the cases.
Del Rosario.
F
Erred and committed reviewable error in ruling
[3]
Promulgated on January 10, 1992.
that proof beyond reasonable doubt of petitioners
[4]
Records, Vol. I, p. 26.
guilt was submitted by the prosecution. In so
doing, the Sandiganbayan wrongly shifted the
[5]
Records, Vol. I, pp. 119-120.
burden of proof and denied petitioner the benefits
[6]
of the presumption of innocence, of Secs. 1 and 2,
Tabuena avers that the Sandiganbayan:
Rule 131, and the absence of demand under the
A
last paragraph of Art. 217 of the Revised Penal
Erred and committed reviewable error in ruling Code.
that petitioners withdrawal of the P55 Million was Peralta for his part claim that:
not for a lawful purpose or for a lawful debt. In the 1. Respondent court grossly and seriously erred in
process,
convicting herein accused despite the absence of
the Sandiganbayan clearly ignored several pieces proof that he allegedly converted the funds
of evidence submitted by petitioner, and withdrawn to his own personal benefit as charged
instead misapprehended the full import of the in the information in glaring violation of his basic
Ongpin Memorandum (Exh. 2, as attachment of constitutional right to be presumed innocent.
Annex I), to which the Marcos order to pay 2. Respondent also grossly erred in convicting
referred (Exh. 1, attachment to Annex I). In so herein accused on the basis of mere assumptions,
concluding,
the Sandiganbayan laid
its conjectures and inferences devoid of factual basis
conclusions open to review as its judgment is in in another court likewise grossly and seriously
effect based on misapprehension of facts erred in convicting herein accused for a crime not
(Cruz vs. Sosing, L-4875, November 27, 1953); charged in the information again in violation of
and in ignoring several material pieces of another constitutional right, that is the right to be
evidence abused its discretion (Buyco vs. People, informed of the accusation or right to due
51 OG 7927).
process.
B
3. Respondent court serious and glaring violation
Erred and committed reviewable error in ruling of his right to be presumed innocent until his guilt
that the Ongpin Memorandum (Exh. 2 and 2-A, is established by proof beyond reasonable doubt.
See Annex I), and the Marcos approval thereof
(Exh. 1, id.) did not support the withdrawal and

P a g e | 45

4. Respondent court finally erred in refusing to

recognize the applicability of the immunity
provision embodied in the Constitution and
of
the
justifying
circumstance
of
obedience to a lawful order as valid
defenses in this case.

cierto, no se ha probado, ni puede

desprenderse de la decision impugnada,
indudablemente
podria
hacersele
responsable a dicho recurrente, de la
falsificacion cometida, si no como coautor,
por lo menos como complice. Todo esto y la
circunstancia justificativa invocada por el
recurrente, eximen a este de toda
responsabilidad.

[7]

Citing PNB v. Tugab, 66 Phil.

People v. Pascua, 71 O.G. 2474.

[8]

Citing Tubb v. People, 101 Phil. 114.

[25]

Decision, p. 45.

[9]

197 SCRA 94.

[26]

145 SCRA 435.

583

and

[10]

18 Phil. 504.

[27]

Supra.

[11]

24 Phil. 230.

[28]

Sandiganbayan Decision, p. 50.

[12]

47 Phil. 48.

[29]

[13]

Lewis v. People, 99 Colo. 102, 60 Pac. [2d]

1089; Lawver v. State, 221 Ind. 101, 46
N.E. [2d] 592; State v. Schmidt, 72 N. Dak.
719, 10 N.W. [2d] 868. Underhills Criminal
Evidence, 5th Ed., Book 3, p. 1421.

People v. Fabian, No. 10790-CR, March

1973. 69 O.G. 12150, No. 53.

[30]

18 Phil. 428.

[31]

197 SCRA 262.

[32]

Supra, p. 431.

[33]

Supra, p. 273.

[34]

Development
Bank
Philippines v. Pundogar,
163.

[14]

Federal Lindgren v. United States, 260 Fed.

772. Underhill, ibid.

[15]

Section 8, Article VII of the 1973 Constitution

provides:
The President shall have control of all ministries.

[36]

TSN, March 17, 1989, p. 7; Vol. III, Records, p.

409.

People v. Olfindo,
47
Phil.
1,
citing
U.S. v. Abijan, 1 Phil. 83; People v. Borbano,
76 Phil. 703; Perez v. Court of Appeals, 127
SCRA 636.

[37]

TSN, March 17, 1989, p. 8; Vol. III, Records, p.

410.

See TSN of March 17, 1989, Records, Vol. III,

pp. 408-423.

[38]

TSN, March 17, 1989, p. 10; Vol. III, Records, p.

412.

See pp. 1-27 TSN of May 2, 1990, Records, Vol.

III, pp. 439-465.

[39]

Gregorio, Fundamentals of Criminal Law, 1988

8th Ed., p. 59.

See pp. 32-53 of TSN, of May 2, 1990, Records,

Vol. III, pp. 470-490.

[40]

[17]

Sandiganbayan Decision, pp. 37-38.

[18]

Sandiganbayan Decision, p. 41.

[21]

[22]

the
118,

People v. Exala, Dissenting Opinion, 221 SCRA

494, 503

No. 6, Article II, Revised Penal Code.

[20]

of
SCRA

[35]

[16]

[19]

218

12,

Confrontation.--Confrontation
consists
of
confronting the witness with damaging facts
which he cannot deny and which are inconsistent
[24]
with his evidence. It is a destructive technique,
Padilla, Revised Penal Code, Book One, Vol. I,
but when it fails to destroy it may still succeed in
7th Ed. 1974., p. 248. See also: Aquino, The
Revised Penal Code, Vol. I, 1987 Ed., p. 207. In the weakening.
very words of the Court in the Nassif case:
Probing.--Probing consists of inquiring thoroughly
[23]

78 Phil. 67.

into the details of the story to discover the flaws.

El mero acto de escribir un empleado de la
categoria del recurrente, en el Exhibit B, la Insinuation.--Insinuation consists of leading or
forcing the witness by adding facts at one
palabra sold, por orden de su principal que
point and modifying details at another, to
le paga el sueldo, sin prueba alguna de
give a version of his evidence which is
dolo o malicia de su parte, no crea por si
more favorable to the other side. The
solo ninguna responsabilidad. Si antes de
Technique of Advocacy, by John H.
insertar dicha palabra en el referido
Munkman, pp. 66-67; p. 75; pp. 91-92.
documento, o al tiempo de hacerlo, el
recurrente hubiese sabido o sospechado de [41] TSN, March 17, 1989, pp. 11-21; Records, Vol.
alguna manera que era para justificar un
III, pp. 413-423.
acto impropio de su principal, cosa que, por

P a g e | 46
[42]

TSN, May 2, 1990, pp. 11-27; Records, Vol. III, their homes. The beneficiaries provided the labor
pp. 449-465.
needed for construction.

[43]

TSN, May 2, 1990, pp. 35-53; Records, Vol. III,

On June 15, 2001 when construction for calamity
pp. 473-490.
victims in Sitio Luy-a, Barangay Tinugtogan, was
US v. Hudieres, 27 Phil. 45; US v. Lim Kui, 35 70% done, the beneficiaries stopped reporting for
work for the reason that they had to find food for
Phil. 504; US v. Binayao, 35 Phil. 23.
their families. This worried Lolita Garcia (Garcia),
People v. Opida, 142 SCRA 295.
the CSAP Officer-in-Charge, for such construction
stoppage could result in the loss of construction
York v. US, 299 Fed. 778.
materials particularly the cement. Thus, she
TSN, May 2, 1990, pp. 35-53; Records, Vol. III, sought the help of Cristina Polinio (Polinio), an
pp. 473-490.
officer of the MSWDO in charge of the
municipalitys Supplemental Feeding Program
People v. Opida, supra.
(SFP) that rationed food to malnourished children.
Murphy v. State, 13 Ga. App. 431, 79 S.E. 228. Polinio told Garcia that the SFP still had sacks of
rice and boxes of sardines in its storeroom. And
People v. Bernstein, 250 Ill. 63, 95 N.E. 50.
since she had already distributed food to the
Dreyer v. Ershowsky, 156 App. Div. 27, 140 N.Y. mother volunteers, what remained could be given
Supp. 819.
to the CSAP beneficiaries.

[44]

[45]
[46]
[47]

[48]
[49]
[50]
[51]

[52]

Dunn v. People, 172 Ill. 582, 50 N.E. 137.

[53]

Com. v. Myma, 278 Pa. 505, 123 Atl. 786.

Garcia and Polinio went to petitioner Arnold James

M. Ysidoro, the Leyte Municipal Mayor, to seek his
approval. After explaining the situation to him,
[54]
Adler v. US, 104 C.C.A. 608, 108 Fed. 464.
Ysidoro approved the release and signed the
[55]
Campaner v. Alano,
CA-G.R.
No.
2558-R, withdrawal slip for four sacks of rice and two
boxes of sardines worth P3,396.00 to
December 15, 1948.
CSAP.2 Mayor Ysidoro instructed Garcia and
[56]
People v. Opida, supra.
Polinio, however, to consult the accounting
department regarding the matter. On being
consulted, Eldelissa Elises, the supervising clerk
of the Municipal Accountants Office, signed the
withdrawal slip based on her view that it was an
G.R. No. 192330
November 14,
emergency situation justifying the release of the
2012
goods. Subsequently, CSAP delivered those goods
ARNOLD JAMES M. YSIDORO, Petitioner,
to its beneficiaries. Afterwards, Garcia reported
vs.
PEOPLE OF THE PHILIPPINES, Respondent. the matter to the MSWDO and to the municipal
auditor as per auditing rules.
DECISION
ABAD, J.:
This case is about a municipal mayor charged
with illegal diversion of food intended for those
suffering from malnutrition to the beneficiaries of
reconsideration projects affecting the homes of
victims of calamities.
The Facts and the Case
The Office of the Ombudsman for the Visayas
accused Arnold James M. Ysidoro before the
Sandiganbayan in Criminal Case 28228 of
violation of illegal use of public propertry
(technical malversation) under Article 220 of the
Revised Penal Code.1

On August 27, 2001 Alfredo Doller, former

member of the Sangguniang Bayan of Leyte, filed
the present complaint against Ysidoro. Nierna
Doller, Alfredo's wife and former MSWDO head,
testified that the subject SFP goods were intended
for its target beneficiaries, Leytes malnourished
children. She also pointed out that the
Supplemental Feeding Implementation Guidelines
for Local Government Units governed the
distribution of SFP goods.3 Thus, Ysidoro
committed technical malversation when he
approved the distribution of SFP goods to the
CSAP beneficiaries.

In his defense, Ysidoro claims that the diversion of

the subject goods to a project also meant for the
poor of the municipality was valid since they
came from the savings of the SFP and the
The facts show that the Municipal Social Welfare
Calamity Fund. Ysidoro also claims good faith,
and Development Office (MSWDO) of Leyte, Leyte, believing that the municipalitys poor CSAP
operated a Core Shelter Assistance Program
beneficiaries were also in urgent need of food.
(CSAP) that provided construction materials to
Furthermore, Ysidoro pointed out that the COA
indigent calamity victims with which to rebuild
Municipal Auditor conducted a comprehensive

P a g e | 47

audit of their municipality in 2001 and found

nothing irregular in its transactions.
On February 8, 2010 the Sandiganbayan found
Ysidoro guilty beyond reasonable doubt of
technical malversation. But, since his action
caused no damage or embarrassment to public
service, it only fined him P1,698.00 or 50% of the
sum misapplied. The Sandiganbayan held that
Ysidoro applied public property to a pubic purpose
other than that for which it has been appropriated
by law or ordinance. On May 12, 2010 the
Sandiganbayan denied Ysidoros motion for
reconsideration. On June 8, 2010 Ysidoro
appealed the Sandiganbayan Decision to this
Court.
The Questions Presented
In essence, Ysidoro questions the
Sandiganbayans finding that he committed
technical malversation. He particularly raises the
following questions:
1. Whether or not he approved the
diversion of the subject goods to a public
purpose different from their originally
intended purpose;
2. Whether or not the goods he approved
for diversion were in the nature of savings
that could be used to augment the other
authorized expenditures of the
municipality;

Resolution 00-133 appropriating the annual

general fund for 2001.6 This appropriation was
based on the executive budget7 which allocated
P100,000.00 for the SFP and P113,957.64 for the
Comprehensive and Integrated Delivery of Social
Services8 which covers the CSAP housing
projects.9 The creation of the two items shows the
Sanggunians intention to appropriate separate
funds for SFP and the CSAP in the annual budget.
Since the municipality bought the subject goods
using SFP funds, then those goods should be used
for SFPs needs, observing the rules prescribed for
identifying the qualified beneficiaries of its
feeding programs. The target clientele of the SFP
according to its manual10 are: 1) the moderately
and severely underweight pre-school children
aged 36 months to 72 months; and 2) the families
of six members whose total monthly income is
P3,675.00 and below.11 This rule provides
assurance that the SFP would cater only to the
malnourished among its people who are in urgent
need of the governments limited resources.
Ysidoro disregarded the guidelines when he
approved the distribution of the goods to those
providing free labor for the rebuilding of their own
homes. This is technical malversation. If Ysidoro
could not legally distribute the construction
materials appropriated for the CSAP housing
beneficiaries to the SFP malnourished clients
neither could he distribute the food intended for
the latter to CSAP beneficiaries.

Two. Ysidoro claims that the subject goods already

3. Whether or not his failure to present the constituted savings of the SFP and that, therefore,
municipal auditor can be taken against him; the same could already be diverted to the CSAP
beneficiaries. He relies on Abdulla v.
and
People12 which states that funds classified as
savings are not considered appropriated by law or
4. Whether or not good faith is a valid
ordinance and can be used for other public
defense for technical malversation.
purposes. The Court cannot accept Ysidoros
argument.
The Courts Rulings
One. The crime of technical malversation as
penalized under Article 220 of the Revised Penal
Code4 has three elements: a) that the offender is
an accountable public officer; b) that he applies
public funds or property under his administration
to some public use; and c) that the public use for
which such funds or property were applied is
different from the purpose for which they were
originally appropriated by law or
ordinance.5 Ysidoro claims that he could not be
held liable for the offense under its third element
because the four sacks of rice and two boxes of
sardines he gave the CSAP beneficiaries were not
appropriated by law or ordinance for a specific
purpose.
But the evidence shows that on November 8,
2000 the Sangguniang Bayan of Leyte enacted

The subject goods could not be regarded as

savings. The SFP is a continuing program that ran
throughout the year. Consequently, no one could
say in mid-June 2001 that SFP had already
finished its project, leaving funds or goods that it
no longer needed. The fact that Polinio had
already distributed the food items needed by the
SFP beneficiaries for the second quarter of 2001
does not mean that the remaining food items in
its storeroom constituted unneeded savings. Since
the requirements of hungry mouths are hard to
predict to the last sack of rice or can of sardines,
the view that the subject goods were no longer
needed for the remainder of the year was quite
premature.
In any case, the Local Government Code provides
that an ordinance has to be enacted to validly

P a g e | 48

apply funds, already appropriated for a

determined public purpose, to some other
purpose. Thus:

offense because positive law forbids its

commission based on considerations of public
policy, order, and convenience.13 It is the
commission of an act as defined by the law, and
SEC. 336. Use of Appropriated Funds and Savings. not the character or effect thereof, that
determines whether or not the provision has been
Funds shall be available exclusively for the
violated. Hence, malice or criminal intent is
specific purpose for which they have been
completely irrelevant.14
appropriated. No ordinance shall be passed
authorizing any transfer of appropriations from
one item to another. However, the local chief
Dura lex sed lex. Ysidoros act, no matter how
executive or the presiding officer of the
noble or miniscule the amount diverted,
sanggunian concerned may, by ordinance, be
constitutes the crime of technical malversation.
authorized to augment any item in the approved
The law and this Court, however, recognize that
annual budget for their respective offices from
his offense is not grave, warranting a mere fine.
savings in other items within the same expense
class of their respective appropriations.
WHEREFORE, this Court AFFIRMS in its entirely the
assailed Decision of the Sandiganbayan in
The power of the purse is vested in the local
Criminal Case 28228 dated February 8, 2010.
legislative body. By requiring an ordinance, the
law gives the Sanggunian the power to determine SO ORDERED.
whether savings have accrued and to authorize
the augmentation of other items on the budget
Footnotes
with those savings.
*
Designated Acting Member, per Special
Three. Ysidoro claims that, since the municipal
Order 1299 dated August 28, 2012.
auditor found nothing irregular in the diversion of
1
the subject goods, such finding should be
Records, p. 1.
respected. The SB ruled, however, that since
Ysidoro failed to present the municipal auditor at
2
Id. at 250.
the trial, the presumption is that his testimony
would have been adverse if produced. Ysidoro
3
Id. at 260-329.
argues that this goes against the rule on the
presumption of innocence and the presumption of
4
Art. 220. Illegal use of public funds or
regularity in the performance of official functions.
property. Any public officer who shall
apply any public fund or property under his
Ysidoro may be right in that there is no basis for
administration to any public use other than
assuming that had the municipal auditor testified,
for which such fund or property were
his testimony would have been adverse to the
appropriated by law or ordinance shall
mayor. The municipal auditors view regarding the
suffer the penalty of prision correccional in
transaction is not conclusive to the case and will
its minimum period or a fine ranging from
not necessarily negate the mayors liability if it
one-half to the total of the sum misapplied,
happened to be favorable to him. The Court will
if by reason of such misapplication, any
not, therefore, be drawn into speculations
damages or embarrassment shall have
regarding what the municipal auditor would have
resulted to the public service. In either
said had he appeared and testified.
case, the offender shall also suffer the
penalty of temporary special
Four. Ysidoro insists that he acted in good faith
disqualification.
since, first, the idea of using the SFP goods for the
CSAP beneficiaries came, not from him, but from
If no damage or embarrassment to
Garcia and Polinio; and, second, he consulted the
the public service has resulted, the
accounting department if the goods could be
penalty shall be a fine from 5 to 50
distributed to those beneficiaries. Having no
per cent of the sum misapplied.
criminal intent, he argues that he cannot be
convicted of the crime.1wphi1
5
Parungao v. Sandiganbayan, 274 Phil.
451, 460 (1991).
But criminal intent is not an element of technical
malversation. The law punishes the act of
6
Records, pp. 258-259.
diverting public property earmarked by law or
ordinance for a particular public purpose to
7
SEC. 318. Preparation of the Budget by
another public purpose. The offense is mala
the
Local Chief Executive. Upon receipt of
prohibita, meaning that the prohibited act is not
the
statements of income and expenditures
inherently immoral but becomes a criminal

P a g e | 49

from the treasurer, the budget proposals of

the heads of departments and offices, and
the estimates of income and budgetary
ceilings from the local finance committee,
the local chief executive shall prepare the
executive budget for the ensuing fiscal year
in accordance with the provisions of this
Title. The local chief executive shall submit
the said executive budget to the
sanggunian concerned not later than the
sixteenth (16th) of October of the current
fiscal year. Failure to submit such budget
on the date prescribed herein shall subject
the local chief executive to such criminal
and administrative penalties as provided
for under this Code and other applicable
laws. (Emphasis supplied)

THIRD DIVISION
AMANDO TETANGCO,
Petitioner,

G.R. No. 1
Present:

Quisumbin
(Chairman)
Carpio,
Carpio Mor
Tinga, JJ.

- versus -

SEC. 319. Legislative Authorization of

the Budget. On or before the end of
the current fiscal year, the
THE
HON.
OMBUDSMAN and Promulgate
sanggunian concerned shall enact,
MAYOR
JOSE
L.
ATIENZA,
JR.,
through an ordinance, the annual
Respondents.
January 20
budget of the local government unit
for the ensuing fiscal year on the
x-------------------------------basis of the estimates of income and - - - - - - - - - - - - - - - - - - -x
expenditures submitted by the local
chief executive.
DECISION
8

Records, p. 254.

QUISUMBING, J.:

TSN, May 23, 2006, p. 15 (rollo, pp. 127128) and TSN, August 2, 2007, pp. 15-16
(rollo, p. 130).
10

Guidelines on the Management of CRS

Supported Supplemental Feeding Program
Implemented by the Local Government
Units; Sandiganbayan rollo, Vol. I, pp. 260329.
11

Id. at 263.

12

495 Phil. 70 (2005).

13

FLORENZ REGALADO, CRIMINAL LAW

CONSPECTUS (2003 rev. ed), citing People
v. Pavlic, 227 Mich., 563, N.W. 371, 35 ALR.

This petition for certiorari seeks to annul

and set aside the Order,[1] dated April 16, 2002,
of public respondent Ombudsman in OMB-CC-020151-C

which

petitioner

dismissed

Amando

the

Tetangco

Complaint
against

of

private

respondent Mayor Jose L. Atienza, Jr., for violation

of Article 220[2] of the Revised Penal Code (RPC).
Also assailed is the Order,[3] dated August 1,
2002, denying the motion for reconsideration.

14

Luciano v. Estrella, 145 Phil. 454, 464-465

(1970).

On March 8, 2002, petitioner filed his

Complaint before the Ombudsman alleging that
on January 26, 2001, private respondent Mayor
Atienza gave P3,000 cash financial assistance to
the

chairman

and P1,000

to

each tanod ofBarangay 105, Zone 8, District I.

P a g e | 50

FACIE CASE AND PROBABLE CAUSE

TO INDICT HIM FOR THE CRIME
CHARGED OR, AT THE VERY LEAST,
FOR VIOLATION OF SEC. 3(e) OF R.A.
NO.
3019
(ANTI-GRAFT
AND
CORRUPT PRACTICES ACT).[4]

Allegedly, on March 5, 2001, Mayor Atienza

refunded P20,000 or the total amount of the
financial assistance from the City of Manila when
such disbursement was not justified as a lawful
expense.
In

The sole issue is, did the Ombudsman

his

Counter-Affidavit,

Mayor

Atienza

denied the allegations and sought the dismissal of

commit grave abuse of discretion in dismissing

the Complaint?

the Complaint for lack of jurisdiction and for

Petitioner

insists

that

Mayor

Atienza

forum-shopping. He asserted that it was the illegally disbursed public funds when he gave the
Commission on Elections (COMELEC), not the aforementioned

financial

assistance

to

the

Ombudsman that has jurisdiction over the case chairman and tanods of Barangay 105 since the
and the same case had previously been filed disbursement was not authorized by law or
before the COMELEC. Furthermore, the Complaint ordinance,

which

the

Ombudsman

did

not

had no verification and certificate of non-forum consider when it dismissed the Complaint of
shopping.

The

mayor

maintained

that

the petitioner. According to petitioner, the dismissal

expenses were legal and justified, the same being by the Ombudsman was capricious since the
supported by disbursement vouchers, and these evidence on record was clear that the mayor was
had passed prior audit and accounting.

guilty of graft and corruption.[5]

The Investigating Officer recommended the

The Ombudsman, through the Solicitor

dismissal of the Complaint for lack of evidence General, contends that it did not abuse its
and

merit.

The

Ombudsman

adopted

his discretion and there was also no probable cause

recommendation.
The Office of the Ombudsman, through its

against private respondent for violation of Art.

220 of the RPC.[6]

Over-all Deputy Ombudsman, likewise denied

petitioners motion for reconsideration.
Before us, petitioner assigns for resolution
a single issue:
WHETHER
OR
NOT
THE
RESPONDENT
OMBUDSMAN
COMMITTED
GRAVE
ABUSE
OF
DISCRETION WHEN IT DISMISSED
THE CRIMINAL CHARGE AGAINST
RESPONDENT MAYOR ATIENZA FOR
VIOLATION OF ART. 220 OF THE RPC
DESPITE THE EXISTENCE OF A PRIMA

For his part, Mayor Atienza avers that there

was no grave abuse of discretion on the part of
the Ombudsman when it dismissed the Complaint.
[7]

After considering the submissions of the

parties, we find that the petition lacks merit. No
grave abuse of discretion is attributable to the
Ombudsman.

P a g e | 51

It is well-settled that the Court will not sufficiently strong in themselves to warrant a
ordinarily

interfere

with

the

Ombudsmans cautious mans belief that the person accused is

determination of whether or not probable cause guilty of the offense with which he is charged.
exists except when it commits grave abuse of
discretion.[8] Grave

abuse

of

discretion

[11]

Here, the Complaint merely alleged that the

exists disbursement for financial assistance was neither

where a power is exercised in an arbitrary, authorized by law nor justified as a lawful

capricious, whimsical or despotic manner by expense. Complainant did not cite any law or
reason of passion or personal hostility so patent ordinance

that

provided

for

an

original

and gross as to amount to evasion of positive appropriation of the amount used for the financial
duty or virtual refusal to perform a duty enjoined assistance cited and that it was diverted from the
by, or in contemplation of law. [9] Thus, we held appropriation it was intended for.
in Roxas v. Vasquez,[10]
this Courts consistent policy has
been to maintain non-interference in
the
determination
of
the
Ombudsman of the existence of
probable cause, provided there is no
grave abuse in the exercise of such
discretion. This observed policy is
based not only on respect for the
investigatory
and
prosecutory
powers granted by the Constitution
to the Office of the Ombudsman but
upon practicality as well. Otherwise,
the functions of the Court will be
seriously hampered by innumerable
petitions assailing the dismissal of
investigatory proceedings conducted
by the Office of the Ombudsman with
regard to complaints filed before it,
in much the same way that the
courts would be extremely swamped
with cases if they could be
compelled to review the exercise of
discretion on the part of the fiscals or
prosecuting attorneys each time they
decide to file an information in court
or dismiss a complaint by a private
complainant.

The Complaint charges Mayor Atienza with

illegal use of public funds. On this matter, Art. 220
of the Revised Penal Code provides:
Art. 220. Illegal use of public
funds or property. Any public officer
who shall apply any public fund or
property under his administration to
any public use other than that for
which such fund or property were
appropriated by law or ordinance
shall suffer the penalty of prision
correccional in its minimum period or
a fine ranging from one-half to the
total of the sum misapplied, if by
reason of such misapplication, any
damages or embarrassment shall
have resulted to the public service.
In either case, the offender shall also
suffer the penalty of temporary
special disqualification.
If
no
damage
or
embarrassment to the public service
has resulted, the penalty shall be a
fine from 5 to 50 percent of the sum
misapplied.

In this case, the action taken by the

Ombudsman cannot be characterized as arbitrary,
capricious,

whimsical

or

despotic.

The

Ombudsman found no evidence to prove probable

cause. Probable cause signifies a reasonable
ground of suspicion supported by circumstances

The elements of the offense, also known as

technical malversation, are: (1) the offender is an
accountable public officer; (2) he applies public
funds or property under his administration to
some public use; and (3) the public use for which

P a g e | 52

the public funds or property were applied is

different from the purpose for which they were
originally appropriated by law or ordinance. It is
clear that for technical malversation to exist, it is

CONCHITA CARPIO MORALES

Associate Justice

DA
A

necessary that public funds or properties had

been diverted to any public use other than that

ATTESTATION

provided for by law or ordinance.[12] To constitute I attest that the conclusions in the above Decision
were reached in consultation before the case was
the crime, there must be a diversion of the funds assigned to the writer of the opinion of the Courts
Division.
from the purpose for which they had been
originally
[13]

appropriated

by

law

or

ordinance.

Patently, the third element is not present in

LEONARD
Ass
Chairm

this case.
Conformably then with Section 2, Rule II of
the Rules of Procedure of the Office of the
Ombudsman,[14] the

Investigating

CERTIFICATION

Officer

may Pursuant to Section 13, Article VIII of the

Constitution,
and
the
Division
Chairmans
recommend the outright dismissal of a complaint Attestation, it is hereby certified that the
conclusions in the above Decision were reached in
if he finds the same devoid of merit. [15]That is consultation before the case was assigned to the
writer of the opinion of the Courts Division.
exactly what happened in this case. Thus, no
abuse of discretion, much less grave abuse, may
be attributed to the respondent Ombudsman.
WHEREFORE,
is DISMISSED for

the
lack

instant
of

ARTEMIO
C

petition

merit.

No

pronouncement as to costs.
SO ORDERED.

LEONARDO A. QUISUMBING
Associate Justice
WE CONCUR:

Republic of the Philippines

Supreme Court
Manila
THIRD DIVISION
ANTONIO T. CARPIO NORMA A. ABDULLA,
Associate Justice
Petitioner,

G.R. NO. 15

P a g e | 53

Present:
- versus PEOPLE OF THE PHILIPPINES,
Respondent.

Appellants co-accused, Nenita Aguil and

PANGANIBAN,
Mahmud Darkis, were both acquitted. Only
SANDOVAL-GUTIERREZ,
CORONA,appellant was found guilty and sentenced by the
CARPIO MORALES, and
[2]
GARCIA, Sandiganbayan in its decision dated August 25,
Promulgated:
2000 (promulgated on September 27,2000), as

follows:
April 6, 2005
x-------------------------------------------------------------------WHEREFORE,
premises
-----------considered, accused Mahmud Darkis
and Nenita P. Aguil are hereby
DECISION
acquitted of the crime charged. The
cash bond posted by each of the said
GARCIA, J.:
accused for their provisional liberty
[1]
are hereby ordered returned to each
Convicted by the Sandiganbayan in its
of them subject to the usual auditing
Crim. Case No. 23261 of the crime of illegal use of
and accounting procedures.
public funds defined and penalized under Article
220 of the Revised Penal Code, or more commonly
Accused Norma Abdulla is
known astechnical malversation, appellant
hereby
convicted of the crime
Norma A. Abdulla is now before this Court on
charged
and
is hereby meted a fine
petition for review under Rule 45.
of three thousand pesos, pursuant to
the second paragraph of Article 220
Along with Nenita Aguil and Mahmud
of the Revised Penal Code. She is
further imposed the penalty of
Darkis, appellant was charged under an
temporary special disqualification for
Information which pertinently reads:
a period of six (6) years. She shall
also pay the costs of the suit.
That on or about November,
SO ORDERED.
1989
or
sometime
prior
or
subsequent thereto, in Jolo, Sulu,
Philippines and within the jurisdiction
of this Honorable Court, the aboveUpon motion for reconsideration, the
named accused: NORMA A. ABDULLA
Sandiganbayan amended appellants sentence by
and NENITA P. AGUIL, both public
officers, being then the President and
deleting the temporary special disqualification
cashier, respectively, of the Sulu
imposed upon her, thus:
State College, and as such by reason
of their positions and duties are
Premises considered, the
accountable for public funds under
decision
of this Court dated August
their administration, while in the
25, 2000, is hereby amended to the
performance of their functions,
effect that the penalty of temporary
conspiring and confederating with
special disqualification for six (6)
MAHMUD I. DARKIS, also a public
years is hereby cancelled and set
officer, being then the Administrative
aside. Hence, the last paragraph of
Officer V of the said school, did then
said decision shall read as follows:
and there willfully, unlawfully and
feloniously, without lawful authority,
Accused Abdulla
apply for the payment of wages of
is
hereby
convicted of
casuals, the amount of FORTY
the
crime
charged
and
THOUSAND
PESOS
(P40,000.00),
is hereby meted a fine
Philippine Currency, which amount
of
three
thousand
was appropriated for the payment of
pesos,
pursuant
to the
the salary differentials of secondary
second
paragraph
of
school teachers of the said school, to
Article
220
of
the
the damage and prejudice of public
Revised Penal Code.
service.
She shall also pay the
costs of the suit.
CONTRARY TO LAW.

P a g e | 54

SO ORDERED.[3]

namely, accused Mahmud Darkis, who was the

Administrative Officer of Sulu State College, Jolo,
Sulu; accused Nenita Aguil, the Cashier of the

Still dissatisfied, appellant, now before this same College; appellant Norma Abdulla herself,
Court, persistently pleas innocence of the crime who was the College President; and Gerardo
charged.
Concepcion, Jr., Director IV and Head of the
Department of Budget and Management, Regional
The record shows that the prosecution Office No. 9, Zamboanga City.
dispensed with the presentation of testimonial
evidence and instead opted to mark in evidence
the following exhibits:

The undisputed facts, as found by the

Sandiganbayan itself:

The evidence on record xxx

DESCRIPTION
show that the request for the
of as
thirty-four
(34)
A
Audit
Report
which
is conversion
denominated
secondary
school
teachers
to
Memorandum of Commission on Audit, Region IX,
Instructor
I items
of the Sulu State
Zamboanga City, from the Office
of the
Special
College,
through itsof
former president,
Audit Team, COA, dated May 8,
1992, consisting
accused
Abdulla,
was
approved by
nine (9) pages;
the Department of Budget and
(DBM);
B
Certified Xerox copy of aManagement
letter from
thethat consequent
to the approval
of the said request,
Department of Budget and Management
through
was
Secretary Guillermo N. Carague
to the
the allotment
President by
of the DBM of the
partial
funding
for
the purpose of
the Sulu State College dated October 30, 1989;
paying the salary differentials of the
said thirty-four
(34)for
secondary school
C
Certified copy of the DBM Advice
of Allotment
teachers in the amount of forty
the Year 1989;
thousand
pesos
(P40,000.00)
sourced
from
the
lump
sum
C-1
The entry appearing in Exhibit C which reads:
appropriation
authorized
on
page
Purpose release partial funding for the conversion
370 of R.A.
6688 to
[should be page
of 34 Secondary School Teacher
positions
RA
6688
(General
Instructor I items; Fund 396
Sourceof lump-sum
Appropriations
Act
January
1
appropriation authorized on page
370 of RA 6688
December
31,
1989)]
and
the
current
and the current savings under personal services;
savings under personal services of
said school
D
Manifestation filed by accused
Norma(Exhibits
Abdulla`B, `C and `C-1;
Exhibit
`18, pp.
tsn, hearing
herself dated November 24, 1997
consisting
of 32-35;
two
of 225
September
1998, pp. 6 to 25
(2) pages appearing on pages
to 226 22,
of the
and 26); that out of the thirty-four
record;
(34) secondary school teachers, only
the six Atty.
(6) teachers
E
Motion filed by the accused through
Sandra were entitled
paid
differentials
Gopez dated February 9, 1998 and
found on
pagessalary
382amounting
a and 382-b of the records of this
case; andto P8,370.00, as the
twenty-eight (28) teachers, who were
occupying
Teacher as
III positions, were
F
Prosecutions Opposition to the
motion marked
no
longer
entitled
to
salary
Exhibit E dated February 11, 1998, consisting of
they
three (3) pages, appearing in differentials
pages 383 toas
385
of were already
receiving the same salary rate as
the record.[4]
Instructor I (Exhibit `A, p. 4, par. 1;
Exhibits `1 to `6, inclusive; Exhibit
`14-A; tsn, hearing of September 22,
Thereafter, the prosecution immediately
1998, pp. 6 to 8; tsn, hearing of
made its Formal Offer of Evidence, and, with the
September 23, 1998, pp. 10-11); and
that the amount of P31,516.16,
admission thereof by the court, rested its case.
taken from the remaining balance of
the P40,000.00 allotment, was used
to pay the terminal leave benefits of
The defense proceeded to adduce its
the six (6) casuals (Exhibits `D and
evidence by presenting four (4) witnesses,
EXHIBITS

P a g e | 55

`E; Exhibits `7 to `12, inclusive; tsn,

hearing of September 22, 1998, pp.
13 and 34; tsn, hearing of September
23, 1998, p. 13).
Accused Abdulla was able to
sufficiently justify the payment of the
salary differentials of only six (6), out
of the thirty-four (34) teachers, when
she testified that out of the thirtyfour (34) teachers, twenty-eight (28)
were already holding the position of
Secondary
School
Teacher
III
receiving the salary of Instructor I;
and that the remaining six (6) were
still holding Secondary Teacher II
positions and therefore receiving a
salary lower than that of Instructor I
so they were paid salary differentials
(tsn, hearing of September 23, 1998,
pp. 8, 10 and 11). In fact, the
notarized audit investigation report
(Exhibit `A, p. 4, 1st par.) and the
Joint Resolution of the Office of the
Ombudsman, Mindanao (Exhibit `14a), also point that said act of the
accused is justified.

all. And recognizing the primacy of the right, this

Court, where doubt exists, has invariably resolved
it in favor of an accused.
In a judgment of acquittal in favor of two
(2) accused charged of murder in People vs.
Abujan,[5] the Court wrote:
We are enraged by the
shocking death suffered by the
victim and we commiserate with her
family. But with seeds of doubt
planted in our minds by unexplained
circumstances in this case, we are
unable to accept the lower courts
conclusion to convict appellants. We
cannot in conscience accept the
prosecutions
evidence
here
as
sufficient proof required to convict
appellants of murder. Hence, here
we must reckon with a dictum of the
law, in
dubilis
reus
est
absolvendus. All doubts must be
resolved in favor of the accused.
Nowhere is this rule more compelling
than in a case involving the death
penalty for a truly humanitarian
Court would rather set ten guilty
men free than send one innocent
man to the death row. Perforce, we
must declare both appellants not
guilty and set them free.

In this recourse, appellant questions the

judgment of conviction rendered against her,
claiming that the Sandiganbayan erred:
I
XXX ON A QUESTION OF LAW IN
INVOKING THE PRESUMPTION OF
UNLAWFUL
INTENT
DESPITE
EVIDENCE TO THE CONTRARY.
II
XXX ON A QUESTION OF LAW IN
HOLDING THAT THE PROSECUTION
WAS
ABLE
TO
PROVE
THAT
PETITIONER COMMITTED TECHNICAL
MALVERSATION UNDER ARTICLE 220
OF THE REVISED PENAL CODE.

The Court grants the appeal.

So precious to her is the constitutional right
of

presumption

of

innocence

unless

proven

otherwise that appellant came all the way to this

Court despite the fact that the sentence imposed
upon her by the Sandiganbayan was merely a fine
of three thousand pesos, with no imprisonment at

Similarly, the Court had to acquit an

accused
Jesus

[6]

charged

of

rape

in People

vs.

on ground of reasonable doubt, to wit:

With seeds of doubt planted
in our minds by the conduct of
proceedings on record, we are
unable to accept the lower courts
conclusion to convict appellant. His
conviction is founded on the sole
testimony of Agnes, but though a
credible witness despite her mental
retardation, she showed unnecessary
dependence on her mother when
identifying the father of her child.
Maternal
coaching
taints
her
testimony. That her mother had to
be ordered by the judge to go
outside the courtroom impresses us
as significant. We are unable to
accept as sufficient the quantum of
proof required to convict appellant of
rape based on the alleged victims
sole testimony. Hence, here we must
fall back on a truism of the law, in
dubilis reus est absolvendus. All

De

P a g e | 56

doubts must be resolved in favor of

the accused.

Resolution

The Courts faithful adherence to the

directive

imposes

upon

it

the

imperative of closely scrutinizing the prosecutions

evidence to assure itself that no innocent person
is condemned and that conviction flows only from
a moral certainty that guilt has been established
by proof beyond reasonable doubt. In the words
of People vs. Pascua[7]:
Our findings in the case at
bar should not create the mistaken
impression that the testimonies of
the prosecution witnesses should
always be looked at with askance.
What we are driving at is that every
accused is presumed innocent at the
onset of an indictment. But, it has
often
happened
that
at
the
commencement of a trial, peoples
minds, sometimes judges too, would
have
already
passed
sentence
against the accused. An allegation,
or even any testimony, that an act
was done should never be hastily
accepted as proof that it was really
done.
Proof must be closely
examined under the lens of a judicial
microscope and only proof beyond
reasonable doubt must be allowed to
convict. Here, that quantum of proof
has not been satisfied.

We shall now assay appellants guilt or

innocence in the light of the foregoing crucibles.
In

her

first

assigned

error,

appellant

contends that the prosecution failed to adduce

evidence to prove criminal intent on her part.
When she raised this issue in her Motion for
Reconsideration before the Sandiganbayan, that
court, invoking Section 5 (b), Rule 131 of the
Rules

of

Court,

ruled

in

promulgated on September 17, 2001,

as follows:

WHEREFORE, the assailed

decision dated May 26, 2000, of the
Regional Trial Court of Camiling,
Tarlac, Branch 68, is REVERSED and
SET
ASIDE.
Appellant
RUBEN
LUMIBAO is ACQUITTED of the charge
of rape on reasonable doubt.

constitutional

[8]

Anent the allegation of the

movant/accused that good faith is a
valid defense in a prosecution for
malversation as it would negate
criminal intent on the part of the
accused which the prosecution failed
to prove, attention is invited to
pertinent law and rulings of the
Supreme Court on the matter.
Sec. 5(b) of the Rule 131,
Rules of Court, provides, `That an
unlawful act was done with an
unlawful intent. Hence, dolo may be
inferred from the unlawful act. In
several cases (Tria, 17 Phil. 303;
Ballesteros, 25 Phil. 634; Sia Tioan,
54 Phil. 52; Cueto, 38 Phil. 935;
Cubelo, 106 Phil. 496), the Supreme
Court ruled that `When it has been
proven
that
the
appellants
committed the unlawful acts alleged,
it is properly presumed that they
were committed with full knowledge
and with criminal intent, `and it is
incumbent upon them to rebut such
presumption.
Further, the same
court also ruled that when the law
plainly forbids an act to be done, and
it is done by a person, the law
implies the guilty intent, although
the offender was honestly mistaken
as to the meaning of the law which
he had violated (State vs. McBrayer,
98 NIC 619; Sing Cong Bieng and Co
Kong,
30
Phil.
577,
580;
Hermenigildo Bautista, CA 40 O.G.
5th Supp. 139). If the act is criminal,
then criminal intent is presumed
(Francisco y Martin, CA 53 O.G.
1450).
In the case at bar, inasmuch
as the prosecution had proved that a
criminal act was committed by the
accused under Article 220 of the
Revised Penal Code, criminal intent
was presumed. The accused did not
present any evidence to prove that
no such criminal intent was present
when she committed the unlawful
act
of
technical
malversation.
Hence, the presumption that the
unlawful act of the accused was
done with criminal intent had been
satisfactorily
proven
by
the
prosecution (Sec. 5[b], Rule 131).

P a g e | 57

circumstantial,
intent
to
gain
or animus lucrandi may be presumed
from the furtive taking of useful
property pertaining to another,
unless special circumstances reveal
a different intent on the part of the
perpetrator. The intent to gain may
be presumed from the proven
unlawful taking. In the case at bar,
the act of taking the victims
wristwatch by one of the accused
Cergontes while accused-appellant
Reyes poked a knife behind him
sufficiently
gave
rise
to
the
presumption.

The Court must have to part ways with the

Sandiganbayan in its reliance on Section 5 (b) of
Rule 131 as basis for its imputation of criminal
intent upon appellant.
For sure, the procedural rule relied upon
does not apply at all to this case. Indeed, clear it
is from its very language that the disputable
presumption of the existence of unlawful or
criminal intent presupposes the commission of
an unlawful act. Thus, intent to kill is presumed
when the victim dies because the act of killing
clearly constitutes an unlawful act. In People vs.
Gemoya,[9] the Court held:

The presumption of criminal intent will not,

however, automatically apply to all charges of
technical malversation because disbursement of
public funds for public use is per se not an

The intent to kill is likewise

presumed from the fact of death,
unless the accused proves by
convincing evidence that any of the
justifying circumstances in Article 11
or
any
of
the
exempting
circumstances in Article 12, both of
the Revised Penal Code, is present.

unlawful act. Here, appellant cannot be said to

have committed an unlawful act when she paid
the obligation of the Sulu State College to its
employees in the form of terminal leave benefits
such employees were entitled to under existing
civil service laws. Thus, in a similar case,[12] the

Court reversed a conviction for technical

In fact, in a Resolution penned by Justice malversation of one who paid out the wages of
Romeo Callejo, Sr. in People vs. Delim, [10] the laborers:
Court en banc categorically stated:
There is no dispute that the
money was spent for a public
purpose payment of the wages of
laborers working on various projects
in the municipality. It is pertinent to
note the high priority which laborers
wages enjoy as claims against the
employers funds and resources.

If the victim dies because of

a deliberate act of the malefactor,
intent
to
kill
is conclusively
presumed. (Emphasis supplied).

Similarly,
lucrandi is

intent

presumed

to

when

gain
one

is

or animus
found

in

possession of stolen goods precisely because the

In the absence of any presumption of

taking of anothers property is an unlawful act. So unlawful intent, the burden of proving by
it is that in People vs. Reyes,[11] the Court held:
competent evidence that appellants act of paying
Accused-appellants
contention
that
the animus
lucrandi was
not
sufficiently
established by the prosecution is
devoid of merit. Animus lucrandi or
intent to gain is an internal act which
can be established through the overt
acts of the offender. Although proof
of motive for the crime is essential
when the evidence of the robbery is

the terminal leave benefits of employees of the

Sulu State College was done with criminal intent
rests upon the prosecution.
The Court notes the odd procedure which
the

prosecution

took

in

discharging

its

undertaking to prove the guilt of appellant beyond

reasonable doubt. As it is, the prosecution did not

P a g e | 58

present any single witness at all, not even for the

purpose

of

identifying

and

proving

the

authenticity of the documentary evidence on

which

it

rested

its

case.

The

prosecution

definitely failed to prove unlawful intent on the

part of appellant.
Settled is the rule that
conviction should rest on the
strength
of
evidence
of
the
prosecution and not on the weakness
of the defense. The weakness of the
defense does not relieve it of this
responsibility.
And
when
the
prosecution fails to discharge its
burden of establishing the guilt of an
accused, an accused need not even
offer evidence in his behalf. A
judgment of conviction must rest on
nothing less than moral certainty. It
is
thus
required
that
every
circumstance favoring his innocence
must be duly taken into account.
The proof against him must survive
the test of reason and the strongest
suspicion must not be permitted to
sway judgment. There must be
moral certainty in an unprejudiced
mind that it was accused-appellant
who committed the crime. Absent
this required quantum of evidence
would
mean
exoneration
for
accused-appellant.[13]

of criminal intent may arise from

proof of the commission of a criminal
act; and the general rule is that if it
is
proved
that
the
accused
committed the criminal act charged,
it will be presumed that the act was
done with criminal intention and that
it is for the accused to rebut this
presumption. But it must be borne in
mind that the act from which such
presumption springs must be a
criminal act In the case at bar, the
act is not criminal. Neither can it be
categorized
as malum
prohibitum, the mere commission of
which makes the doer criminally
liable even if he acted without evil
intent.[14]

The second assigned error refers to the

failure of the prosecution to prove the existence
of all the essential elements of the crime of
technical malversation defined in Article 220 of
the Revised Penal Code, which are:
1.

That the offender is a public

officer;

2.

That there is public fund or

property
under
his
administration;

3.

That such public fund or

property
has
been
appropriated
by
law
or
ordinance;

4.

That he applies the same to a

public use other than that for
which such fund or property
has been appropriated by law
or ordinance.[15]

The Sandiganbayans improper reliance on

Sec. 5(b) of Rule 131 does not save the day for
the

prosecutions

deficiency

in

proving

the

existence of criminal intent nor could it ever tilt

the scale from the constitutional presumption of
innocence to that of guilt.

In the absence of

criminal intent, this Court has no basis to affirm

appellants conviction.
x x x. This calls to mind the
oft-repeated maxim `Actus non facit
reum, nisi mens sit rea, which
expounds a basic principle in
criminal law that a crime is not
committed if the mind of the person
performing the act complained of be
innocent. Thus, to constitute a
crime, the act must, except in
certain crimes made such by statute,
be accompanied by a criminal
intent. It is true that a presumption

Appellant contends that the prosecution

was unable to prove the second and third
elements of the crime charged.

[16]

She argued

that the public funds in question, having been

established to form part of savings, had therefore
ceased to be appropriated by law or ordinance for
any specific purpose.
The
submission.

Court

finds

merit

in

appellants

P a g e | 59
Renovation of
Buildings and
Structures, and
Acquisition of
Equipment
Total New
Appropriations, Sulu
State College

As found by the Sandiganbayan no less, the

amount of forty thousand pesos (P40,000.00)
originally intended to cover the salary differentials
of thirty four (34) secondary school teachers
whose employment status were converted to
Instructor I, were sourced from the lump sum
appropriation authorized on page 370 (should be
page 396) of R.A. 6688 and the current savings
under personal services of said school.

[17]

The pertinent portions of RA 6688 are

xxx

For general administration,

administration of personnel benefits,
salary
standardization,
higher
education and secondary education
services, including locally-funded
project as indicated hereunder..P
17,994,000
New
Appropriations,
Function/Project

Personal
Services
-------------------

by

Maintenance
and Other
Operating
Expenses
------------------

5. Secondary Education
Services
Total, Functions

B. Locally-Funded
Project
1. Acquisition and
Improvements of
Lands, Construction,
Rehabilitation or

P8
==

xxx

New Appropriations, by Object of Expenditure

(In Thousand Pesos)
A. Functions/Locally-Funded Project

Total Salaries of Permanent Personnel

Total Salaries and Wages of Contractual and
Emergency Personnel
Total Salaries and Wages

Other Compensation

------------------

Honoraria and Commutable Allowances

Cost of Living Allowances
Employees Compensation Insurance Prem
Pag-I.B.I.G. Contributions
Medicare Premiums
Merit Increases
Salary Standardization
Bonuses and Incentives
Others

Total Other Compensation

A. Functions

4. Higher Education
Services

P
2,509,000
=======
===

xxx

Current Operating
Expenditures
-----------------------------------

3. Salary
Standardization

P 6,873,000
=======
===

8
----

Personal Services

K.2 Sulu State College

2. Administration of
Personnel Benefits

----------------

Current Operating Expenditures

reproduced hereunder:

1. General
Administration and
Support Services

-----------------

P 1,605,000

P
1,196,000

The Court notes that there is no particular

608,000

appropriation for salary differentials of secondary

57,000
1,967,000

O1 Total Personal Services

school teachers of the Sulu State College in RA

577,000

6688. The third element of the crime of technical

malversation which requires that the public fund

2,636,000
----------------6,873,000
-----------------

736,000
---------------2,509,000
----------------

used should have been appropriated by law, is

therefore absent. The authorization given by the
Department of Budget and Management for the
use of the forty thousand pesos (P40,000.00)
allotment for payment of salary differentials of 34
secondary school teachers is not an ordinance or

P a g e | 60

law contemplated in Article 220 of the Revised decision and resolution of the Sandiganbayan in
Penal Code.

Criminal Case No. 23261 are REVERSED and SET

ASIDE and appellantACQUITTED of the crime

The

Court

has

unequivocably

in Parungao vs. Sandiganbayan

[18]

that in

ruled charged against her. The cash bond posted by

the appellant for her provisional liberty, if any, is

absence of a law or ordinance appropriating the ordered returned to her subject to the usual
public fund allegedly technically malversed (in auditing and accounting procedures.
that case, the absence of any law or ordinance
appropriating the CRBI fund for the concreting of
Barangay Jalung Road), the use thereof for
another public purpose (there, for the payment of
wages of laborers working on projects other than
the Barangay Jalung Road) will not make the
accused guilty of violation of Article 220 of the
Revised Penal Code.
Appellant herein, who used the remainder
of the forty thousand pesos (P40,000.00) released
by the DBM for salary differentials, for the
payment of the terminal leave benefits of other
school teachers of the Sulu State College, cannot
be held guilty of technical malversation in the
absence, as here, of any provision in RA 6688
specifically

appropriating

said

amount

for

payment of salary differentials only. In fine, the

third and fourth elements of the crime defined in
Article 220 of the Revised Penal Code are lacking
in this case. Acquittal is thus in order.
WHEREFORE,
hereby GRANTED.

the
Accordingly,

petition
the

is

appealed

SO ORDERED.