FIRST DIVISION
|
FE M.
CABRERA, Petitioner,
- versus - HON.
SIMEON V. MARCELO, in his capacity as OMBUDSMAN, THE HON. SANDIGANBAYAN
(Third Division) and FRANCO P. CASANOVA,
Respondents. |
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G.R. No. 157835 Present: PANGANIBAN,
C.J. Chairperson, YNARES-SANTIAGO, AUSTRIA-MARTINEZ, CALLEJO, SR. and CHICO-NAZARIO, JJ. Promulgated: |
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CHICO-NAZARIO, J.:
Before Us is a Petition for Review on
Certiorari under Rule 65 of the 1997
Rules of Civil Procedure which seeks for the nullification of the Resolution[1]
dated 3 June 2002 and Order[2]
dated 5 February 2003, both issued by the Office of the Ombudsman.
The antecedents are the following:
Pursuant to Commission on Audit (COA)
Special Order No. 99-04 dated
The audit team headed by Auditor Ely
G. Valdez found, among other things, that:
Checks issued as payments to suppliers/creditors were deposited into the account of the Municipal Mayor at Philippine Savings Bank, Lemery Branch under Account # 1818010393 in violation of R.A. 6713.
Section 7, Par. a of R.A. 6713 otherwise known as the “Code of Conduct and Ethical Standards for Public Officials and Employees” states that: Public officials and employees shall not, directly or indirectly, have any financial or material interest in any transaction requiring the approval of their office.
Review
of cleared checks issued as payments to suppliers/creditors of the municipality
(
Details are shown below:
|
|
Disb. Voucher # |
Payee |
Check # |
Date |
Amount |
|
1 |
101-98-09-1025 |
Budget Wise Marketing |
64131 |
|
19,308.64 |
|
2 |
|
Narciso Gumapac |
68614 |
|
13,363.64 |
|
3 |
|
Taal Volcano Restaurant |
68616 |
|
11,672.73 |
|
4 |
|
Taal Volcano Restaurant |
68615 |
|
11, 672.73 |
|
5 |
101-98-12-1302 |
Aguila Hardware |
68622 |
|
19,386.45 |
|
6 |
101-98-12-1303 |
Aguila Hardware |
68623 |
|
19,221.10 |
|
7 |
101-98-12-1350 |
Aguila Hardware |
68651 |
|
19,221.10 |
|
8 |
|
Aguila Hardware |
68654 |
|
19,454.55 |
|
9 |
101-98-12-1393 |
Hipolito Hardware |
68676 |
|
19,109.23 |
|
10 |
|
Jeery Encarnacion |
68677 |
|
19,545.55 |
|
|
|
|
|
Total |
|
Management Comments:
And the suppliers/creditors wanted to have their checks converted into cash. Wanting to help, the mayor gave in to their request. She encashed their checks without charge. She did not earn even a single centavo from any of said transaction, on the contrary she was always at the losing end of the deal.
Despite of her good intention, at the start of CY 1999 and up to the present the Honorable Mayor stops and no longer accommodate the request of the suppliers and creditors, because the people might perceived (sic) that she would be benefiting from said transaction.
Team Rejoinder:
Considering that the payees are known businessmen/women of the locality and have been a supplier of the municipality for quite some time and that the depository bank is just located to a nearby municipality, it is unlikely that they do not maintain their own bank account.
Team Recommendation:
Instruct the Municipal Treasurer to ensure that checks payments should be released only to payee and that the checks should be properly stamped “For Payees Account Only” to avoid being encashed by other person or deposited to account other than the payee’s.
Also, municipal officials should be prohibited from being used as conduit or facilitator/fixer by supplier/contractor for the early or expeditious release of their financial claims against the municipality for financial consideration.[3]
On the strength of said audit report,
an amended complaint-affidavit dated 8 March 2002 was filed by respondent Franco
P. Casanova accusing petitioner Fe M. Cabrera, former Mayor, and her husband, incumbent
Mayor Librado M. Cabrera, both of the Municipality of Taal, Batangas, with
violations of Article 217 in relation to Articles 171 and 48 of the Revised
Penal Code, [4]
and of Republic Act No. 3019, as amended.
The case was docketed as OMB-L-C-02-0166-B.
Petitioner and Librado M. Cabrera
alleged, inter alia,
that the subject checks were issued as payment to the different suppliers that
transacted business with the municipal government. Petitioner asserted that her signatures at
the back of the subject checks were mere accommodations to the requests of the
suppliers in order that the checks can be encashed, and that she did not forge
the signature of any of the suppliers.
Complainant Casanova filed his
Reply-Affidavit.
On
On
That
on or about December 01, 1998, or sometime prior or subsequent thereto, in the
Municipality of Taal, Province of Batangas, Philippines, and within the
jurisdiction of this Honorable Court, accused FE M. CABRERA, a public officer,
being then the Municipal Mayor of Taal, Batangas, and as such had
administrative control of the funds of the municipality and whose approval is
required in the disbursements of municipal funds, committing the crime herein
charged in relation to her official functions and taking advantage of her
public position, did then and there, willfully, unlawfully and feloniously
deposit to her personal account at Philippine Savings Bank, Lemery Branch under
Account No. 1818010393 a Land Bank Check No. 68623 issued by the Municipal
Government of Taal, Batangas to Aguila Hardware in the amount of NINETEEN
THOUSAND THREE HUNDRED EIGHTY SIX PESOS and 45/100 (P19,386.45) thereby
having financial or pecuniary interest in the business, contract or transaction
in connection which she intervened or took part in her official capacity as the
Mayor of Taal, Batangas.[5]
The nine other Informations
are similarly worded except for the date, number, amount, and payee of the
checks. The pertinent data in the other informations are as follows:
|
Crim. Case No. |
Date |
Check No. |
Amount |
Payee |
|
27539 |
|
68622 |
P19,221.10 |
Aguila Hardware |
|
27540 |
|
68651 |
P19,221.10 |
Aguila Hardware |
|
27541 |
|
68654 |
P19,454.55 |
Aguila Hardware |
|
27542 |
|
68676 |
P19,109.23 |
Hipolito Hardware |
|
27543 |
|
68677 |
P19,545.55 |
Jeery Encarnacion |
|
27544 |
|
64131 |
P19,308.64 |
Budget Wise Marketing |
|
27545 |
|
68614 |
P13,363.64 |
Narciso Gumapac |
|
27546 |
|
68616 |
P11,672.73 |
Taal Volcano Restaurant |
|
27547 |
|
68615 |
P11,672.73 |
Taal Volcano Restaurant |
Petitioner
filed a Motion for Reinvestigation dated
In
an Order dated
On
The
Petitioner
raises the following grounds to support her petition:
WITH ALL DUE
RESPECT, PUBLIC RESPONDENT OMBUDSMAN ACTED WITHOUT OR IN EXCESS OF HIS
JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN APPROVING THE RESOLUTION
DATED
WITH ALL DUE RESPECT, PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF HIS JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION (sic) DISAPPROVING THE ORDER DATED 27 NOVEMBER 2002 OF THE OSP WHICH HAD RECOMMENDED THE DISMISSAL OF CRIMINAL CASES NOS. 27538 TO 27547.
Petitioner
contends that the Ombudsman acted without or in excess of his jurisdiction or
with grave abuse of discretion in approving the resolution dated 3 June 2002
issued by Graft Investigation Officer II Adoracion A.
Agbada recommending the filing of 10 informations against her for violation of Section 3(h) of
Republic Act No. 3019, as amended. She explains
that she merely acceded to the request of the payees of the subject checks to
advance to them their cash value to spare them the hassle of encashing the same with the drawee bank. She claims the payees, in turn, endorsed the
checks to her which she then deposited to her account with the Philippine
Savings Bank. She contends that her
signature at the back of the subject checks does not constitute evidence of an
alleged financial or pecuniary interest contemplated in Section 3(h) of
Republic Act No. 3019. She adds that the
transactions covered by said checks actually took place and that her
participation was limited to co-signing the checks which were issued in payment
therefor.
From
the foregoing, it appears that petitioner would like to show that the elements
of the offense charged are not present -- that she has no financial or
pecuniary interest in the contracts or transactions for which the checks were
issued, and that she did not intervene or take part in her official capacity as
Mayor regarding said contracts or transactions.
The essential elements of a violation
of Section 3(h) of Republic Act No. 3019, as amended, are as follows: (1) The
accused is a public officer; (2) he has a direct or indirect financial or
pecuniary interest in any business, contract or transaction; and (3) he either:
(a) intervenes or takes part in his official capacity in connection with such
interest, or (b) is prohibited from having such interest by the Constitution or
by law.[6]
The
10 informations charge petitioner for having a
financial or pecuniary interest in the contracts or transactions entered into
by the Municipality of Taal, Batangas, where she,
being then the Mayor of said municipality who has administrative control of the
funds of the municipality and whose approval is required in the disbursements
of municipal funds, intervened and took part in her official capacity by
issuing the checks involved and who thereafter deposited the same in her
personal bank account.
The arguments advanced by petitioner clearly
involve the elements of the offense charged.
In support thereof, petitioner presented during the reinvestigation five
affidavits to prove that the affiants merely requested petitioner to give them
the cash equivalent of the checks involved and that they were indeed given the
value thereof. At this juncture,
petitioner cannot be exonerated without going through trial considering that
the checks she signed as Municipal Mayor as payment to suppliers, ended up in
her personal bank account. The mere
presentation of said affidavits will not suffice without further elucidation on
the matter.
Settled is the rule that the presence
or absence of the elements of the crime is evidentiary in nature and is a
matter of defense, the truth of which can be best passed upon after a
full-blown trial on the merits.[7] In the case at bar, the grounds relied upon
by petitioner should be fully explained and threshed out not in a preliminary
investigation but during trial as the same are matters of defense involving
factual issues.
The Ombudsman, in his Order dated
In support of her Motion for Reinvestigation, accused Cabrera submitted the Affidavits of Antonio Aguila, proprietor of Aguila Hardware; Paulina Aala, General Manager of Taal Volcano Restaurant; Narciso Gumapac and Jeery Encarnacion, two of the payees in the checks issued by the Municipality, all of whom claim that they requested accused Cabrera to give them the equivalent cash in exchange of the checks issued by the Municipality in their favor as they allegedly needed the money to support their working capital requirements and thereby continue to do business with the Municipality. According to the said affiants, accused Cabrera agreed to accommodate their requests; hence, after the checks were endorsed in favor of accused Cabrera, the latter gave them the corresponding value of the checks in cash. In the same breath, however, they all claim that accused Cabrera’s “act of depositing the subject checks in her account was in payment of money that she had advanced.”
Exactly how the indorsement of the checks in favor of Cabrera and their deposit in the latter’s account possibly facilitate the encashment of such checks, was not at all explained. If the checks have already been issued and were already in the name of the suppliers, then all that the latter needed to do was go to the drawee bank, which is just in the next municipality, and present the checks for encashment. It is likewise worthy to note that the payees of said checks are supposed to be known businessmen in their locality and have supposedly been doing business with the Municipality for quite sometime. Hence, it is quite unlikely that they do not maintain their own bank account. (COA Report, p. 30)
It
is likewise well to note that of the six payees indicated in the subject
checks, only four (4) executed Affidavits in defense of accused Cabrera. Of the four (4) affiants, one (1) is not even
the authorized signatory of the entity indicated in the check. As can be gleaned from the Certification (Annex
“C” of the Complaint-Affidavit dated February 15, 2002; Annex “A” of the
Amended Complaint-Affidavit dated March 8, 2002) issued by the Municipal
Accountant, Ms. Emma A. Ramirez, the authorized signatory of Taal Volcano
Restaurant is Aquilina Aala, not Paulina Aala.
In fact, the payee indicated in the checks pertaining to Taal Volcano
Restaurant is “Taal Volcano Restaurant or Aquilina Aala.” (cf.
Annexes “B-1” and “B-3” of the Complaint-Affidavit dated
Moreover, it is worthy to note that the sample signature of Aquilina Aala appearing in the Certification prepared by the Municipal Accountant (Annex “C” of the Complaint-Affidavit dated February 15, 2002; Annex “A” of the Amended Complaint-Affidavit dated March 8, 2002) appears to be different from those appearing at the back of the subject checks which were indorsed to and deposited in the account of accused Cabrera (cf. dorsal side of Annexes “B-1” and “B-3” of the Complaint-Affidavit dated February 15, 2002; dorsal side of Annexes “C-2” and “C-4” of the Amended Complaint-Affidavit dated March 8, 2002).
Similarly, the signature of Narciso Gumapac in his Affidavit submitted by accused Cabrera in support of her Motion for Reinvestigation (cf. Annex “4” of the Motion for Reinvestigation) does not even come anywhere close to the signature appearing in the dorsal portion of Check No. 68614 issued in his name (cf. Annex “B-4” of the Complaint-Affidavit dated February 15, 2002; Annex “C-1” of the Amended Complaint-Affidavit dated March 8, 2002).
It is likewise worthy to note that “Herminio Hipolito Hardware & Construction Supply or Herminio Hipolito” and “Budget Wise Marketing,” in whose favor some of the subject checks were issued (cf. Annexes “B-2” and “B-4 of the Complaint-Affidavit dated February 15, 2002; Annexes “C-1” and “C-3” of the Amended Complaint-Affidavit dated March 8, 2002) do not appear in the list of suppliers of the Municipality (cf. Annex “C” of the Complaint-Affidavit dated February 15, 2002; Annex “A” of the Amended Complaint-Affidavit dated March 8, 2002)
Furthermore, a perusal of the check issued in favor of “Budget Wise Marketing” shows that the same was, in fact, indorsed by accused Cabrera herself and her husband (see dorsal side of Annex “B-4” of the Complaint-Affidavit dated February 15, 2002 and Annex “C-1” of the Amended Complaint-Affidavit dated March 8, 2002). This clearly supports the allegation of complainant that accused and her husband were the beneficiaries of the transaction covered by the subject check. Notably, accused Cabrera utterly failed to explain this particular circumstance or rebut complainant’s allegation in this regard.[8]
Probable cause, for the purpose of
filing a criminal information, has been defined as such facts as are sufficient
to engender a well-founded belief that a crime has been committed and that
respondent is probably guilty thereof.
It is a reasonable ground of presumption that a matter is, or may be,
well-founded, such a state of facts in the mind of the prosecutor as would lead
a person of ordinary caution and prudence to believe, or entertain an honest or
strong suspicion, that a thing is so.
The term does not mean “actual and positive cause” nor does it import
absolute certainty.[9]
In case at bar, the Ombudsman found
petitioner probably guilty of violation of Section 3(h) of Republic Act No.
3019, as amended, when she deposited in her personal bank account the checks
that she issued in her official function as Municipal Mayor used as payment to
suppliers. In making this conclusion, we
find the Ombudsman did not commit any grave abuse of discretion owing to the
evidence already on record. The
determination of whether or not she is guilty of the crimes charged is another
matter that is left to the Sandiganbayan after trial
on the merits.
Settled is the rule that a prosecutor
does not decide whether there is evidence beyond reasonable doubt of the guilt
of the accused. A prosecutor merely
determines whether there is sufficient ground to engender a well-founded belief
that a crime has been committed and that the accused is probably guilty of the
crime, and should stand trial. In
determining probable cause, an inquiry on whether the evidence is sufficient to
warrant conviction is not required. A
trial is intended precisely for the reception of prosecution evidence in
support of the charge. It is the court’s
task to determine guilt beyond reasonable doubt based on the evidence presented
by the parties at a trial on the merits.[10]
Moreover, we have consistently refrained
from interfering with the constitutionally-mandated investigatory and
prosecutorial powers of the Ombudsman absent any compelling reason.[11] In the case of Quiambao v. Desierto,[12]
citing The Presidential Ad-Hoc Fact
Finding Committee on Behest Loans v. Ombudsman Aniano
Desierto,[13]
we held:
The prosecution of offenses committed by public officers is vested in the Office of the Ombudsman. To insulate the Office from outside pressure and improper influence, the Constitution as well as R.A. 6770 has endowed it with wide latitude of investigatory and prosecutory powers virtually free from legislative, executive, or judicial intervention. This Court consistently refrains from interfering with the exercise of its powers, and respects the initiative and independence inherent in the Ombudsman who, “beholden to no one, acts as the champion of the people and the preserver of the integrity of the public service.”
In Maturan v. People,[14]
we ruled:
A policy of non-interference by the courts in the exercise of the Ombudsman’s constitutionally mandated powers 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 courts 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, in much the same way that the courts would be extremely swamped if they were 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.
Petitioner likewise faults the
Ombudsman for disapproving the order dated
We are not persuaded.
First, petitioner’s reliance on the Roxas case is misplaced. Said case is not in all fours with the case
on hand. In Roxas, We remanded the case to the Office of the Ombudsman for
further proceedings for the determination of probable cause because the charges
were manifestly false and the petitioners’ right to procedural due process was violated
because they neither had knowledge of, nor participation in, the proceedings where
the finding of probable cause was made. This is not true in the case before us.
Second, the fact that the OSP’s recommendation is not approved or adopted by the
Ombudsman does not mean that the latter acted without or in excess of his
jurisdiction or committed grave abuse of discretion. If the Ombudsman may dismiss a complaint
outright for lack of merit, it necessarily follows that it is also within his
discretion to determine whether the evidence before him is sufficient to
establish probable cause.[16] In case of conflict between the conclusion of
the Ombudsman and the Prosecutor, the former’s
decision shall prevail since the OSP is under the supervision and control of
the Ombudsman.[17]
We find the act of the Ombudsman in
disapproving the OSP’s recommendation to be
substantiated by the evidence on record.
The disapproval was made after his assessment that there was sufficient
evidence to indict petitioner. Such act
was an exercise of the Ombudsman’s constitutionally-mandated
investigatory and prosecutorial powers with which the courts should not
interfere.
WHEREFORE, the
petition is DISMISSED. Costs against petitioner.
SO ORDERED.
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MINITA V. CHICO-NAZARIOAssociate Justice |
WE
CONCUR:
Chief Justice
Chairperson
Associate Justice Associate
Justice
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ROMEO J.
CALLEJO, SR. Associate Justice |
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Pursuant to Article VIII,
Section 13 of the Constitution, 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’s Division.
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ARTEMIO V.
PANGANIBAN Chief Justice |
[1] Rollo, pp. 34-37.
[2]
[3]
[4] Malversation of Public Funds thru Falsification of Public Documents.
[5] Rollo, pp. 76-78.
[6] Domingo v. Sandiganbayan, G.R. No.
149175,
[7] Rodrigo, Jr. v. Sandiganbayan, 362 Phil.
646, 659 (1999); Osorio v. Desierto, G.R. No. 156652,
[8] Rollo, pp. 38-41.
[9] Osorio v. Desierto, supra note 6 at 573.
[10] Diamante
III v. Sandiganbayan, G.R. No. 147911,
[11] Nava
v. National Bureau of Investigation, Regional Office No. XI,
[12] G.R. No. 149069,
[13] 418 Phil. 715, 721 (2001).
[14] G.R. Nos. 150353-54,
[15] 411 Phil. 276 (2001).
[16] Nava v. National Bureau of Investigation, Regional Office No. XI, Davao City, supra note 10 at 391-392.
[17] Diamante III v. Sandiganbayan, supra note 9.