SECOND DIVISION
|
CONRADO B. NICART, JR., Petitioner, -
versus - HON.
SANDIGANBAYAN, THIRD DIVISION, THE PEOPLE OF THE Respondents. |
G.R. No. 147272
Present:
PUNO, J., Chairperson, SANDOVAL-GUTIERREZ, AZCUNA, and GARCIA, JJ. Promulgated: |
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D E C I S I O N
GARCIA, J.:
In this
petition for certiorari under Rule 65 of the Rules of Court, with prayer for
injunctive relief, Conrado B. Nicart, Jr. seeks to annul and set aside the
Order dated
The antecedent facts and proceedings:
This case started when Nilcar Mosende, et al., on the basis of the findings of the Commission on Audit
(COA), filed with the Office of the Ombudsman for the Visayas (OMB-Visayas,
hereinafter) a complaint against herein respondent Luz B. Ty (Ty, hereinafter),
then municipal treasurer of San Policarpo, Eastern Samar for, among other
offenses, misappropriation of over P4.1 Million of public funds. Answering, Ty denied the allegations in the
complaint, docketed as OMB-VIS-CRIM-96-1188, and pointed a finger of blame on
petitioner Conrado Nicart, Jr., then Mayor of said municipality.
In a bid then to evade liability that
might arise from the Mosende complaint,
Ty, in an AFFIDAVIT-COMPLAINT[4]
dated November 6, 1966, charged petitioner with violation of Section 3 (a) and
(e) of Republic Act (R.A.) No. 3019, otherwise known as the Anti-Graft and
Corrupt Practices Act. In her complaint, docketed as
OMB-VIS-CRIM-96-1210, Ty stated that she was influenced and induced by the
petitioner to violate certain office rules and regulations. Going into
specifics, she alleged issuing, upon petitioner’s instructions, several PNB
checks in favor of third parties, which checks, however, ended being encashed
by petitioner’s wife, Thelma. She also alleged being induced by the petitioner,
his wife and an aide to withdraw huge amounts from the municipal coffers to be
charged to the account of petitioner.
And according to Ty, petitioner drew funds from her (Ty’s) cash advances and used the same
for purposes other than what they were
appropriated for, adding, in close, that
petitioner purchased, in January 1994, a Nissan car using a PNB check issued in her (Ty’s) name.
For his part, petitioner tagged Ty’s
accusatory but false allegations as a case of buck-passing, and then proceeded
to file a counter-charge against Ty for malversation and violation of R.A. No. 3019.
Meanwhile, the Special Audit Division,
COA-Regional Office-VIII, acting on the request of the OMB-Visayas to look into
the veracity of the allegations in Ty’s affidavit-complaint and the legality of
the transactions mentioned therein, submitted on P1,180,000.00
remain unaccounted and unliquidated and that both Ty and petitioner are
responsible therefor.
Following the usual preliminary
investigation, Graft Investigating Officer Thaddeus Boiser submitted a
Resolution dated
An information was accordingly filed
with the Sandiganbayan against both petitioner and Ty, docketed as Criminal
Case No. 24674. The accusatory portion
of the information[6]
reads as follows:
That in or about the month of October 1996 and for sometime prior
thereto, at the Municipality of San Policarpo, Province of Eastern Samar,
Philippines, and within the jurisdiction of this Honorable Court, above named
accused, public officers, being the Municipal Mayor and Municipal Treasurer of
the [said] Municipality … and as such, have in their possession and custody of
public funds in the total amount of FOUR MILLION ONE HUNDRED SIX THOUSAND FOUR
HUNDRED EIGHTY NINE AND 15/100 PESOS (P4,106,489.15), Philippine Currency, for
which they are accountable by reason of the duties of their office, taking
advantage of their official positions, conniving and confederating together …
with intent to defraud and of gain, did then and there willfully, unlawfully and
feloniously appropriate, take, misappropriate, embezzle and convert to their
own personal use and benefit said public funds in the amount of FOUR MILLION
ONE HUNDRED SIX THOUSAND FOUR HUNDRED EIGHTY NINE AND 15/100 PESOS
(P4,106,489.15) Philippine Currency, and despite demands made upon them to
account for said public funds, they have failed to do so, to the damage and
prejudice of the government, particularly the Municipality of San Policarpo,
Eastern, Samar.
The
following events then transpired:
1.
After posting the necessary bail bond, petitioner moved for a reinvestigation
and the Sandiganbayan allowed him to file the necessary motion.
2.
Petitioner moved for and obtained a reinvestigation, but the Office of the
Special Prosecutor denied the motion in an Order of
3.
On June 30, 1999, petitioner interposed an Urgent
Motion to Defer Proceedings with Motion for Leave to File Petition for Review
with the [OMB], which motion, however, the Sandiganbayan denied in its
first assailed Order of July 23, 1999[8]
on the ground that the motion partakes of “[a prohibited] second Motion for
Reconsideration [and that] the matters raised therein appear to be evidenciary
in character which should be ventilated during the trial.”
4. On
Pursuant to its assailed Resolution of
5. A little over two weeks later , the Sandiganbayan, acting on
the motion filed by the prosecution pursuant to Sec. 13 of R.A. 3019, issued
another Resolution dated February 15,
2001,[10]
suspending petitioner (at that time holding the Vice Mayoralty position) from
office for ninety days from notice.
Hence, this petition.
In a
Resolution of
Given the
separate resolutions adverted to dated April 2 and
This is not
say, however, that the assailed suspension resolution of the Sandiganbayan,
insofar as it imposed a 90-day preventive suspension instead of the maximum 60
days prescribed by Section 63 of the Local Government Code of 1991 (R.A. No. 7160),[16]
is flawed. Far from it. As may be noted, the anti-graft court ordered
the petitioner’s suspension on the basis of Section 13 of R.A. No. 3019,[17]
malversation of public funds being an offense involving fraud against
government funds and is clearly included among the crimes contemplated under
said section. Be that as it may and given the presumptive validity of the
information in question, petitioner’s urging for the Court to strike down the
suspension order cannot be granted. As the Court articulated in Segovia v. Sandiganbayan,[18]
citing what then Chief Justice Andres R. Narvasa referred to therein as the “mass of jurisprudence”:
The Anti-Graft and Corrupt
Practices Act implicitly recognizes that the power of preventive suspension
lies in the court in which the criminal charge is filed; ….
The provision of suspension pendent lite applies to all persons
indicted upon a valid information under the Act, whether they be appointive or
elective officials …. It applies to a … Municipal Mayor, a Governor, a
Congressman ….
It is mandatory for the
court to place under preventive suspension a public officer accused before it.
xxx
xxx xxx xxx
However, the preventive
suspension may not be of indefinite period . . . . The Court has thus laid down
the rule that preventive suspension may not exceed the maximum period of ninety
(90) days in consonance with [PD] No. 807, … now Section 52 of the
Administrative Code of 1987. (Citations omitted; word in bracket added.)
Like the
petitioner’s challenge against the preventive suspension resolution of the
Sandiganbayan, his assault against that court’s
As may be recalled, the order adverted to
denied, as earlier recited, petitioner’s
Urgent Motion to Defer Proceedings with
Motion for Leave to Allow Accused to File Petition for Review with the Office
of the Ombudsman. Petitioner sought deferment to provide him time while he makes a bid to secure a review of
the Office of the Special Prosecutor’s denial of his (petitioner’s) motion for
reinvestigation. Petitioner would now have this Court strike down the said
At any
rate, in no sense may the challenged order be stigmatized as capricious,
oppressive or wanting in logic as to call for its invalidation by the extraordinary writ of
certiorari. As it were, the respondent
court predicated its denial of the motion to defer on, inter alia, the fact that
the said motion “partakes of a second
Motion for Reconsideration” suggesting – and correctly so - that the filing
thereof is contrary to the Office of the
Ombudsman’s one-motion rule expressed under the following provision:
SEC. 8. Motion for reconsideration or reinvestigation; Grounds.-Whenever
allowable, a motion for reconsideration or reinvestigation may only be
entertained if filed within ten (10) days from receipt of the decision ….
xxx xxx xxx
Only one motion for
reconsideration or reinvestigation shall be allowed, and the hearing officer
shall resolve the same within . . . .[20]
This brings
us to the third and last issue. It relates to petitioner’s Urgent Omnibus Motion dated
The
determination of a probable cause during a preliminary investigation pertains
to the public prosecutor who inquires into facts concerning the commission of a
crime with the end in view of determining whether an information may be
prepared and filed against the accused.[22]
This prefatory inquiry is for the purpose of ascertaining whether or not there
is well-founded ground to believe that a crime has been committed by the
accused who is probably guilty thereof,[23]
and ergo should be held for trial.[24]
Such investigation should be distinguished from an inquiry to determine
probable cause for the issuance of a warrant of arrest. The first kind, also
called preliminary investigation proper, is executive in nature and is part of
the prosecutor’s job. The second kind is judicial in nature and is lodged with
the judge.[25]
But while
the institution of a criminal suit, be it thru complaint or information, rests
upon the sound discretion of the prosecutor, the trial court, once its
jurisdiction over the case attaches, is not without competence, nay the duty,
to evaluate, in appropriate cases, the prosecution’s determination of a
probable cause, particularly when confronted with a motion to quash on the
ground that the prosecution had filed the information or denied a motion for
reinvestigation with grave abuse of discretion. While perhaps not on all fours,
what the Court, through now Chief Justice Artemio V. Panganiban, said in Ledesma v. Court of Appeals[26]
is very much apropos:
In Martinez vs. Court of Appeals, this Court overruled the grant of
the motion to dismiss filed by the prosecuting fiscal … because, such grant was
based upon consideration other than the judge’s assessment of the matter.
Relying solely on the conclusion of the prosecution to the effect that there
was no sufficient evidence against the accused to sustain the allegation in the
information, the trial judge did not perform his function of making an
independent evaluation or assessment of the merits of the case.
Despite the pronouncement in
Marcelo that a final resolution of the appeal to the Department of
Justice is necessary, both decisions followed the rule in Crespo vs. Mogul: Once a complaint or information is filed in
court, any disposition of the case … rests on the sound discretion of the
court. Trial judges are thus required to make their own assessment of whether
the secretary of justice committed grave abuse of discretion in granting or
denying the appeal, separately and independently of the prosecution’s or the
secretary’s evaluation that such evidence is insufficient or that no probable
cause to hold the accused for trial exists. They should embody such assessment
in their written order disposing of the motion. (citations omitted)
In the case at bench, petitioner cannot
plausibly impute grave abuse of discretion on respondent Sandiganbayan for
denying, pursuant to its
From the foregoing, accused
Nicart’s own evidence substantiates the charge of malversation filed against
him, although only to the extent of P475,000.00. Nicart’s claim that if his
wife’s signature appears in the checks …, it is because the checks were given
to her by the store owner for encashment. This has to be proven by evidence.
Accused Nicart also claims
that his signature in some of the checks involved in this case has been forged.
xxx. However, the NBI Questioned
Document Report No. 1112-1197 … states that “the questioned and the standard
sample signatures of CONRADO B. NICART, JR. were written by one and the same
person.” The audit/investigation also
revealed that “cash advances totaling P1,180,000.00 remain unaccounted and
unliquidated” for which he and his co-accused Ty were found to be responsible
…. The contention of the accused that the Special Prosecutor “has nothing at
all to support his decision” …, therefore,
is not correct.
It may be,
as petitioner claims, that the amount appearing as having been misappropriated
in the Information exceeds what the COA audit report yields and that both
documents slightly differ as to when the acts or transactions complained of
occurred.
This
variance as to amount and date of occurrence does not, to our mind, vitiate the
validity of the Information in question. For, the filing of an information
follows and is dependent on a finding of a probable cause in a preliminary
investigation. But then an investigation, advisedly called preliminary, is not
the stage for the full and exhaustive display of the parties’ evidence; it is,
to stress, only an occasion for the presentation of such evidence as may
engender a prima facie showing that
an offense has been committed and that the accused probably committed it.[27] The question of whether or not the COA audit
report is the only determinative documentary evidence to prove the offense
charged is not a proper subject of inquiry in this certiorari proceedings.
In all, the
petitioner has failed to demonstrate that grave abuse of discretion tainted the
issuance of the assailed order and resolutions.
We are thus denying the instant recourse to clear the path for the
Sandiganbayan to write finis, one
way or the other, to its Criminal Case No. 24674.
WHEREFORE, the petition is DISMISSED.
Costs
against the petitioner.
SO ORDERED.
CANCIO C. GARCIA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Associate Justice
Chairperson
|
ANGELINA SANDOVAL-GUTIERREZ Associate Justice |
RENATO C. CORONA Associate Justice |
ADOLFO S. AZCUNA
Associate Justice
A T T E S T A T I O N
I attest that the conclusions in the
above decision were reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.
REYNATO S. PUNO
Associate Justice
Chairperson, Second Division
C E R T I F I C A T I O N
Pursuant to Article VIII, Section 13
of the Constitution, and the Division Chairperson's Attestation, it is hereby
certified that the conclusions in the above decision were reached in
consultation before the case was assigned to the writer of the opinion of the
Court.
ARTEMIO V. PANGANIBAN
Chief Justice
[1] By Associate Justice Cipriano A. Del Rosario (ret.), concurred in by Associate Justice Teresita Leonardo de Castro and Associate Justice Ricardo M. Ilarde (ret.); Appendix “A,” Petition; Rollo, p. 41.
[2] Appendix “B,” Petition; Rollo, pp. 42, et seq.
[3] Appendix “C,” Petition; Rollo, pp. 45-48.
[5] Appendix “F,” Petition; Rollo, pp. 78 et seq.
[6] Annex “I,” Petition; Rollo, pp. 129-131.
[7] Annex “J,” Petition; Rollo, pp. 132-133.
[8] See Note No. 1, supra.
[9] See Note No. 2, supra.
[10] Annex “C,” Petition; Rollo, pp. 45 et seq.
[11] Rollo, p. 157.
[12]
[13] Page 14, Petitioner’s Urgent Motion for Reconsideration in G.R. No. 147272; Rollo, pp. 166 et seq.
[14] PAL v. Pascua, G.R. No. 143258,
[15] Olanolan v. COMELEC, G.R. No. 165491,
[16] Sec. 63. Preventive Suspension. – Preventive suspension may be imposed … (2) By the governor, if the respondent is an elective official of a … municipality; xxx Provided, That any single preventive suspension of local elective officials shall not extend beyond sixty (60) days; xxx.
[17] Sec. 13. Suspension and loss of benefit.- Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code, or for any offense involving fraud upon government or public funds … is pending in court shall be suspended from office. xxx.
[18] G.R.
No. 124067,
[19] See Note No. 1, supra.
[20] Rules of Procedure of the Office of the Ombudsman.
[21] See
Note No. 2, supra.
[22] Arula v. Espino, No. L. 28949, June 23,
1969, 28 SCRA 540.
[23] Mayuga v. Maravilla, No. L-18826,
December 17, 1966, 18 SCRA 1115.
[24] Webb v. De
[25] Ledesma v. Court of Appeals, G.R. No.
113216,
[26] Ibid.
[27]
Mayuga v. Maravilla, supra; Trocio
v. Manta, G.R. No. L-34834, Nov. 15, 1982, 118 SCRA 241.