FIRST DIVISION
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CIELITO
R. GAN, Petitioner, - versus - PEOPLE
OF THE Respondent. |
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G.R. No. 165884 Present: YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ, CALLEJO, SR., CHICO-NAZARIO, and NACHURA, JJ. Promulgated: |
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CHICO-NAZARIO, J.:
Before Us is a Petition for Review on
Certiorari under Rule 45 of the Rules
of Court, which seeks to set aside the Decision[1] of
the Court of Appeals dated 16 June 2004 in CA-G.R. CR No. 22073 which affirmed,
except for the penalties imposed, the Joint Decision[2]
of Branch 26 of the Regional Trial Court (RTC) of Cabanatuan
City, in Criminal Cases No. 224-AF (4682-R), 127-AF (4683-R), 225-AF (4684-R),
128-AF (4685-R), 153-AF (4686-R), 666-AF (4687-R), 155-AF (4688-R), 667-AF
(4689-R), 668-AF (4690-R) and 226-AF (4691-R) dated 27 August 1997 finding
petitioner Cielito R. Gan
guilty of ten counts of Simple Theft, and its Resolution[3]
dated 20 October 2004 denying petitioner’s motion for reconsideration.
The ten informations
for Qualified Theft were filed on
The accusatory portion of the
information in Crim. Case No. 224-AF (4682-R) reads:
That
on or about the 15th day of November, 1982, in the City of Cabanatuan, Republic of the Philippines, and within the
jurisdiction of this Honorable Court, the above- named accused, being employed
as an internal auditor of the Wesleyan University-Philippines, with intent of
gain and without the knowledge of the said institution’s representative, Dr.
Gloria D. Lacson, President, person-in-charge of the
administrative and financial matters, with serious breach of confidence reposed
on him by his employer did then and there willfully, unlawfully, and
feloniously take, steal and carry away the sum of FIVE THOUSAND SIX HUNDRED
THIRTY PESOS & 45/100 (P5,630.45), Philippine Currency, in the
following manner to wit: said accused
then assigned as the internal auditor of the aforesaid Wesleyan
University-Philippines, for the purpose of auditing the task performed by the
accounting department thereof, as in fact said auditor did audit the “cash turn
over slip” representing the part cash collection of Elsa A. Dantes,
teller, for the said business day and after counting and auditing the cash,
check/s embodied therein, instead of returning the same to said teller for the
final turn-over to the treasurer, said accused deliberately withheld the same
without any authority to do so and pocketed the sums involved, to the damage
and prejudice of the Wesleyan University-Philippines in the aforementioned amount,
Philippine Currency.[4]
The nine other Informations
are similarly worded except for the date when the theft was committed, the
amount taken, and the name of the teller whose collection was taken. The pertinent data in the other informations are as follows:
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Case
No. 127-AF (4683-R) 225-AF (4684-R) 128-AF (4685-R) 153-AF (4686-R) 666-AF (4687-R) 155-AF (4688-R) 667-AF (4689-R) 668-AF (4690-R) 226-AF (4691-R) |
Date 30 May 1983 |
Amount
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Name of Teller Mercedita S. Manio Elsa A. Dantes Mercedita S. Manio Mercedita S. Manio Elsa A. Dantes Mercedita S. Manio Elsa A. Dantes Mercedita S. Manio Mercedita S. Manio |
When arraigned on
The prosecution presented the following
witnesses: Elsa A. Dantes, Merceditas
S. Manio, Jose B. Ferrer, Emely Pajarillaga, Librada D. Lacson, Inocencia Sarmenta, and Jose C.
Reyes. On the other hand, the accused
took the witness stand for the defense.
Elsa A. Dantes[7]
testified that she has been working at the Wesleyan University-Philippines
(WUP) since 1972 and has been holding the position of teller since June
1981. As teller, she receives payments
from students or persons paying the school for which she issues receipts. The original copy of the official receipt is
given to the person paying while she holds on to the duplicate and triplicate
copies. She explains that she turns over
her collection for the day to the Internal Auditor of WUP for auditing
purposes. Together with the money, she
turns over three copies of Cash Turn Over Slips (CTOS) and the duplicate and
triplicate copies of the official receipts she had issued for the payments she
had received. The Internal Auditor
returns to her one copy of the CTOS, and the duplicate and triplicate copies of
the official receipts which she will use as bases in making an abstract of
receipts. She said it is the teller’s
duty to turn over the money to the Internal Auditor and it is the latter who
will give it to the treasurer. Once she
turns over the money to the Treasurer, she no longer knows what the Internal
Auditor does to the money. She said she
was on duty on 15 November 1981,[8] 30
May 1983,[9] 7
November 1983,[10] and 4
June 1984[11] where
she turned over to petitioner for auditing the amounts of P5,630.45, P11,228.00,
P13,6780 and P16,820, respectively, together with their corresponding
CTOS and duplicate and triplicates copies of the official receipts. As proof that she prepared the CTOS, her
initials[12] appear
thereon. She explained that the initials[13]
of petitioner on the CTOS which he affixed in her presence indicate that he has
received the money from her. Since the
CTOS[14]
did not contain the signature of the Treasurer of WUP, it means that the money
was not delivered to the Treasurer. She
revealed she learned about the missing funds from Joaquin Cunanan
and Company, WUP’s External Auditor, when the latter
discovered the same. She disclosed that
there was no written instruction for her to deliver and leave the money to the
Internal Auditor.
Merceditas Manio[15]
took the witness stand and stated that she has been a teller at WUP since P17,895.00,
P10,500.85, P30,819.00, P8,975.75, P25,668.00, and P9,551.60,
respectively. Each amount was turned
over to the Internal Auditor for audit accompanied with the CTOS and the
duplicate and triplicate of the official receipt. All the CTOS[22]
covering the foregoing amounts contained both her signature[23]
and that of petitioner which show that it was she who
prepared the CTOS and that the amounts were turned over to the petitioner. She said petitioner wrote his signatures[24]
or initials on the CTOS in her presence.
Ms. Manio
further narrated that she learned her duties as teller from petitioner and that
from the time she started working as a teller in June 1981, she turned over her
collections to petitioner. She said it
was through the External Auditor, Joaquin Cunanan and
Company, that she found out about the missing funds. She added that although there was no written
instruction from the management of the WUP to turn over the collections to the
Internal Auditor, it was the usual procedure for tellers to turn over the
collections to petitioner. She stressed
that the signature of petitioner in the CTOS means he audited the collection
and took the money. Of the two copies of
the CTOS retained by petitioner, petitioner is supposed to deliver a copy to
the Treasurer who will sign the copy to be kept by petitioner.
Jose B. Ferrer[25]
testified that he has been the Accountant of WUP since June 1974. As such, his duties, among other things, are
to record in the General Ledger the monthly transactions reflected in the cash
disbursement book, cash receipts book, and receivables from students and
employees. He said that the Internal
Auditor is not the custodian of funds and the tellers are not supposed to turn
over their collections to the Internal Auditor.
However, there was an order from the Internal Auditor to turn over the
collections to him. He explained that
although there was no written order, memo or circular requiring the collections
of the tellers to be turned over to the internal auditor, the tellers still
followed the order of the Internal Auditor to turn over to him their
collections. Having full trust in him as
representative of the Office of the President, they followed him because they
believed that whatever is being ordered by him comes from the President. When petitioner was appointed Internal
Auditor in 1979, he disclosed that the latter began to change all their
procedures. He added that the Internal
Auditor checks the work of the tellers, Accountant and the Treasurer and
whatever corrections he makes on the work of the Treasurer, he considers to be
conclusively correct because he trusts him, he being a Certified Public
Accountant.
Emely Pajarillaga[26]
narrated that she has been the Bookkeeper of the WUP since May 1980. As bookkeeper, her duties include recording
cash disbursements based on paid vouchers, collections based on abstracts given
by the tellers, and official receipts in the cash receipts book. She said she does not know about the
collections of Elsa A. Dantes and Merceditas
Manio on
Librada D. Lacson[27]
testified that she has been an employee of the WUP and is the younger sister of
the President of WUP, Dr. Gloria D. Lacson. He knows petitioner to be the former Internal
Auditor of WUP. She narrated that after
three years of looking for petitioner because of the criminal cases filed
against him, petitioner was arrested in Parañaque by
two policemen from Baclaran. At the time of petitioner’s arrest, she said
she was a few meters away. They
thereafter brought petitioner to P20,000.00 given by Dr. Gloria D. Lacson
was divided among her, the two policemen, the driver, and another
civilian. She explained that when
petitioner was apprehended, the arresting officers were armed with a warrant of
arrest which she said was issued sometime between the years 1986 and 1987 after
petitioner disappeared.
Inocencia Sarmenta[28]
testified that she is the Treasurer of WUP and has known petitioner since
1981. Her duties, among other things,
are to take custody of the school’s monies which come to her possession and to
see to it that its obligations are paid.
In handling the monies, she keeps receipts which she has signed together
with the deposit slips and passbook. As
Treasurer, she explained that the procedure of the flow of money from the
teller up to the time it reaches her possession is that the teller turns over
the money to Cielito Gan
who is supposed to turn over the monies to her.
She said that this was the procedure prescribed by petitioner when the
latter was appointed Internal Auditor and it was the latter who instructed the
tellers thereof. As evidence of the
teller that the money is turned over to the Internal Auditor, the teller
prepares a CTOS which the teller gives to the Internal Auditor, together with
the money. After the money is audited by
the Internal Auditor, he is supposed to turn it over to her on the same
date. After she receives the money, she
prepares the four copies of the deposit slip and then deposits the money in
their depositary bank. Prior to the
appointment of petitioner as Internal Auditor, the procedure was for the
tellers to turn over the money to the Treasurer. She disclosed that she did come across the
CTOS marked Exhibits “A” to “J.” Since
the monies were not turned over to her, it only means that the same went to
petitioner. She added that being a
co-employee, she knows the signature of the petitioner and that his signature
appears in the CTOS.
Ms. Sarmenta
said that when the new procedure was implemented, she did not take any step to question
it because petitioner was directly under the Office of the President and as
Internal Auditor, he has the authority to implement it. She learned in the later part of August 1984
from the school’s External Auditor, Joaquin Cunanan
and Company, that the CTOS involved in this case were not turned over to
her. When she learned of the loss, she
was not able to talk to petitioner because he was already absent without
official leave (AWOL) and was no longer in the office. She talked to the tellers who informed her
that they gave the money covered by the subject CTOS to petitioner. The President of WUP, she said, asked that
petitioner be located. She added that a
Fact Finding Committee was formed by the school and that petitioner was found
to be at fault. Finally, she said the
money that was not missing was deposited by her in the bank.
Jose C. Reyes,[29] a
partner of the Joaquin Cunanan and Company, testified
that the company has been the External Auditor of WUP since 1977. It conducted yearly audit on WUP and in the
audit of the P1.7 million covering the
period 1981 to 1984 cannot be accounted for.
Said finding was contained in their report.[30]
He revealed that although he had no
personal participation in the preparation of the report, they did the actual
examination since he was still there and that the result is in their
possession. The report, he said, is
based on the working papers consisting of documents, CTOS and receipts. The CTOS[31]
involved in this case, except for one,[32]
are included in the report.
He explained that there is a ruling
in Accounting that no one or no person shall be in-charge of all phases of the
transaction. In the case of WUP,
petitioner, as Internal Auditor, was able to get hold of the collections and
this is “a very strong violation” of a good internal audit and accounting,
because the internal auditor can easily manipulate the records. The ordinary procedure of WUP was for the
teller who receives the collections to turn over the same directly to the
treasurer and then the treasurer deposits the money in the bank. From the CTOS they examined, they learned
that this procedure was not followed by petitioner because the collections
still passed through him. He added there
was a turnover of CTOS to the treasurer but not actually the amounts received
from the teller.
He further explained that the anomaly
was discovered only during the regular audit for 1984. During the special audit, as noted in their
report, they tried to account for all the CTOS that the tellers prepared, but
neither the tellers’ copy nor the treasurer’s copy can be accounted for.
Petitioner Cielito
R. Gan testified that prior to his appointment in
June 1979 as Internal Auditor of WUP, he was a student assistant in the
Accounting Office from 1973 to 1974 and bookkeeper from 1974 until he was
appointed Internal Auditor. As Internal
Auditor, he emphasized it is not his duty to have custody of funds. It is the Treasurer who is the custodian of
all school funds and the primary duty of the tellers is to turn over their
collections to the Treasurer. He
explained that when he conducts an audit on the collections of the tellers, the
tellers who make the turn over of the collections are present. In conducting his audit which usually takes
three to five minutes, he said that in the presence of the tellers he
physically counts the cash to determine if the CTOS tallies with the
receipts. If it does, he affixes his
signature in the middle portion of the CTOS signifying that he audited that
particular CTOS, and then he returns the cash, CTOS and official receipts to
the teller concerned. His signature on
the CTOS does not mean he received the money.
He does not get a copy of the CTOS because it is the Treasurer who gives
him a copy thereof after the money has been deposited in the bank by the
Treasurer and that he receives it within three to five days. After his audit, he said he presumes that the
tellers turn over the cash, CTOS and official receipts to the Treasurer because
that is their duty. He audits the cash
deposits of the Treasurer and he does this by comparing the CTOS with the
deposit slip which documents are furnished him by the Treasurer. He added that if the Bank Reconciliation
Statement, made up of the account of the school and the record of the bank, is
balanced and tallies, there is no missing account. It is the Accountant of the school who
prepares this document which is noted by the Treasurer. As far as he knows, the Bank Reconciliation
Statement of the school from 1982 to 1984 tallied.
Petitioner insisted the charges are
not true. He claimed he had no
participation in the losses. He admitted
getting hold of the money/collection together with the CTOS and official
receipts for audit, but claimed he returned them to the tellers who then turn
them over to the Treasurer who is the custodian of the funds of the
school. He maintained that he had nothing
to do with the change of policy as regards the flow of money in WUP. If there is a change of policy, the approval
of the WUP President is required because it is not part of his authority to do
so. He said that sometime in 1982, the
tellers told him their file of CTOS was not complete because they had not
received their copies of the CTOS from the Treasurer. During the period 1982 to 1984, he claims the
tellers did not complain about any missing fund.
Petitioner disclosed he came to know
about the missing funds when the External Auditor, Joaquin Cunanan
and Company, reported it in 1984. Prior
to the report, he did not know there were missing funds because he assumed that
the funds were intact because the Monthly Bank Reconciliation Statement always
tallied. He was not able to take steps
to locate the missing funds because he was the one being pointed to by the
people in the Accounting Office as the perpetrator. As the one being blamed for the loss, he
filed his resignation on
He said he did not give any written
explanation before he resigned and that he was not aware that a complaint
against him was forthcoming. He said
that while the external audit was being conducted, the Treasurer, Ms. Inocencia Sarmenta, told him
there were missing funds and that they were blaming him for them. He said he also did not personally approach
any of the external auditors to verify what the missing funds were. He resigned because of the pressure and
intrigues due to the anomalies that were uncovered and were being blamed on
him. He admitted that his resignation
was not accepted and that the WUP President, Dr. Lacson,
wrote him informing him of some problems that should be cleared. When he went to Dr. Lacson’s
house, he was told to pay the lost amount but he replied he did not make it
because he did not handle the cash.
Thereafter, on October 3 or 4, 1984, he left without clearance from the
school.
He said that after he left the WUP in
Nueva Ecija, he stayed or
resided in
He added that he does not know if the
school trusted him, but he believes he was hired because of his ability. He said the President of WUP trusted the
Treasurer and the Accountant more than him and that he felt like a dummy in his
office. Though he was familiar with the
activities in the Treasurer, Accounting and Bookkeeping Offices, he never
changed the manner of transaction in these offices. If ever changes or amendments are to be made,
the same will come from the President’s Office.
When he became Internal Auditor, he said he merely continued or retained
the system or scheme that was being implemented since he was still a student
assistant. He said he cannot remember
any occasion when he personally handed over to the Treasurer money handed over
to him by the tellers.
Petitioner said he merely kept silent
and did not object to the finding of the External Auditor that he is the most
logical perpetrator of the irregularity, because he had no more time to comment
since the prosecution was already presenting its evidence when he was able to
read the report.
In its decision dated
PREMISES CONSIDERED, and finding the accused CIELITO R. GAN guilty beyond reasonable doubt of the crime of Theft in each of ten (10) cases, is hereby sentenced to suffer the penalty of:
1. In Crim. Case
No. 224-AF (4682-R), and applying the Indeterminate Sentence Law, FOUR (4)
MONTHS and ONE (1) DAY OF Arresto Mayor, as minimum,
to FOUR (4) YEARS, TWO (2) MONTHS and ONE (1) DAY of prision
correccional, as maximum, and to pay the offended
party the amount of P5,630.45;
2. In Crim.
Case No. 127-AF (4683-R), and applying the Indeterminate Sentence Law, FOUR (4)
YEARS, TWO (2) MONTHS and ONE (1) DAY of prision correccional, as minimum, to TEN (10) YEARS as maximum, and
to pay the offended party the amount of P17,895.00;
3. In Crim. Case
No. 225-AF (4684-R), and applying the Indeterminate Sentence Law, the penalty
of FOUR (4) MONTHS and ONE (1) DAY of Arresto Mayor,
as minimum, to FOUR (4) YEARS, TWO (2) MONTHS and ONE (1) DAY of prision correccional, as maximum,
and to pay the offended party the amount of P11,228.00;
4. In Crim. Case
No. 128-AF (4685-R), and applying the Indeterminate Sentence Law, FOUR (4) MONTHS
and ONE (1) DAY of Arresto Mayor, as minimum, to FOUR
(4) YEARS, TWO (2) MONTHS and ONE (1) DAY of prision correccional, as maximum, and to pay the offended party the
amount of P10,500.85;
5. In Crim. Case
No. 153-AF (4686-R), and applying the Indeterminate Sentence Law, EIGHT (8)
YEARS and ONE (1) DAY of prision mayor, as minimum,
to TWENTY (20) YEARS of reclusion temporal, as maximum, and to pay the offended
party the amount of P30,819.00;
6. In Crim. Case
No. 666-AF (4687-R), and applying the Indeterminate Sentence Law, FOUR (4)
YEARS, TWO (2) MONTHS and ONE (1) DAY of prision correccional, as minimum, to TEN (10) YEARS of prision Mayor, as maximum, and to pay the offended party
the amount of P13,678.00;
7. In Crim. Case
No. 155-AF (4688-R), and applying the Indeterminate Sentence Law, FOUR (4)
MONTHS and ONE (1) DAY of Arresto Mayor, as minimum,
to FOUR (4) YEARS, TWO (2) MONTHS and ONE (1) DAY to SIX (6) YEARS, of prision correccional, as maximum,
and to pay the offended party the amount of P8,915.75;
8. In Crim. Case
No. 667-AF (4689-R), and applying the Indeterminate Sentence Law, FOUR (4)
YEARS, TWO (2) MONTHS and ONE (1) DAY of prision correccional, as minimum, to TWELVE (12) YEARS of prision mayor, as maximum, and to pay the offended party the
amount of P16,820.00;
9. In Crim. Case
No. 668-AF (4690-R), and applying the Indeterminate Sentence Law, EIGHT (8)
YEARS and ONE (1) DAY of prision mayor, as minimum,
to TWENTY (20) YEARS of reclusion temporal, as maximum, and to pay the offended
party the amount of P25,668.00;
10. In Crim. Case
No. 226-AF (4691-R), and applying the Indeterminate Sentence Law, FOUR (4)
MONTHS and ONE (1) DAY of Arresto Mayor, as minimum,
to FOUR (4) YEARS, TWO (2) MONTHS and ONE (1) DAY of prision
correccional, as maximum, and to pay the offended
party the amount of P9,551.60;
11. And to pay the cost of suit.[33]
The trial court justified its ruling
in this wise:
A
careful scrutiny and analysis of the evidence presented by the prosecution and
defense, this Court has reached the inevitable conclusion that the evidence of
the prosecution is more credible than that of the accused and is sufficient to
establish the guilt of the accused beyond reasonable doubt in the ten (10)
cases. In fact, it was shown that when
it was pointed out that the accused was responsible for the missing funds, he
did not take any step at all to clear his name, but instead he resigned and
although there is no official action yet on his resignation, he left the
University without any leave of absence, that is, he went AWOL. As a matter of fact, when a warrant for his
arrest was already issued, accused Cielito Gan was no longer in
Finally,
the Court cannot close its eyes to the fact that when the accused went on AWOL,
an investigation was conducted and the people from the University in the
presence of some police officers found in the drawer of the accused copies of
Cash Turn Over Slips which were falsified by the accused, so the conclusion
reached by the Court is fortified.
Nevertheless, the Court did not find any clear evidence to support the
allegation of the prosecution of trust and confidence on the accused, as in
fact, the accused said that he does not know if trust and confidence was
reposed on him, although, as stated above, the guilt of the accused is proved
beyond reasonable doubt for Theft on the ten (10) counts as it is clearly
proved that the amount of money stated in the information were taken by the
accused with intent of gain.[34]
After the promulgation of the
decision of the trial court, petitioner, who was on provisional liberty by
virtue of the bailbonds he posted, was taken into
custody. Thereafter, he filed a Petition
for Bail[35] which
the trial court denied in an Order dated
A Notice of Appeal having been filed
by petitioner, the trial court transmitted the complete records of the cases to
the Court of Appeals.[37]
Petitioner filed anew a Petition for
Bail[38]
before the Court of Appeals which the latter denied in a resolution dated
On
WHEREFORE,
in the light of the foregoing, the court a
quo’s Joint Decision promulgated on
1. In Criminal Case No. 224-AF (4682-R),
accused-appellant is sentenced to suffer an indeterminate penalty of four (4)
months and one (1) day of arresto mayor, as
minimum, to two (2) years of prision correccional, as maximum; and to pay private
complainant Wesleyan University-Philippines the amount of Five Thousand Six
Hundred Thirty Pesos and Forty-Five Centavos (P5,630.45);
2. In Criminal Case No. 127-AF (4683-R),
accused-appellant is sentenced to suffer an indeterminate penalty of four (4)
years, two (2) months and one (1) day of prision correcional, as minimum, to eight (8)
years of prision mayor, as maximum; and to pay private
complainant Wesleyan University-Philippines the amount of Seventeen Thousand
Eight Hundred Ninety-Five Pesos (P17,895.00);
3. In Criminal Case No. 666-AF (4687-R),
accused-appellant is sentenced to suffer an indeterminate penalty of four (4)
years, two (2) months and one (1) day of prision correccional, as minimum, to eight (8)
years of prision mayor, as maximum; and to pay the
private complainant Wesleyan University-Philippines the amount of Thirteen
Thousand Six Hundred Seventy-Eight Pesos (P13,678.00);
4. In Criminal Case No. 667-AF (4689-R),
accused-appellant is sentenced to suffer an indeterminate penalty of four (4)
years, two (2) months and one (1) day of prision correccional, as minimum, to eight (8)
years of prision mayor, as maximum; and to pay the
private complainant Wesleyan University-Philippines the amount of Sixteen
Thousand Eight Hundred Twenty Pesos (P16,820.00);
5. In Criminal Case No. 153-AF (4686-R),
accused-appellant is sentenced to suffer an indeterminate penalty of eight (8)
years and one (1) day of prision mayor, as minimum, to eleven (11) years
of prision mayor, as maximum; and to pay private complainant
Wesleyan University-Philippines the amount of Thirty Thousand Eight Hundred
Nineteen Pesos (P30,819.00);
6. In Criminal Case No. 668-AF (4690-R),
accused-appellant is sentenced to suffer an indeterminate penalty of eight (8)
years and one (1) day of prision mayor, as minimum, to eleven (11) years
of prision mayor, as maximum; and to pay private
complainant Wesleyan University-Philippines the amount of Twenty-Five Thousand
Six Hundred Sixty-Eight Pesos (P25,668.00); and
7. In
Criminal Case No. 155-AF (4688-R), accused-appellant is sentenced to suffer an
indeterminate penalty of four (4) months and one (1) day of arresto mayor, as minimum, to four (4) years, two (2) months and one (1)
day of prision correccional,
as maximum; and to pay private complainant Wesleyan University-Philippines the
amount of Eight Thousand Nine Hundred Fifteen Pesos and Seventy-Five Centavos (P8,915.75);
The aforesaid Decision is AFFIRMED in all other respects.[41]
Petitioner filed a Motion for Reconsideration[42] which
was denied in a resolution dated
Petitioner
is now before us raising the following arguments:
A.
THE COURT OF APPEALS GRAVELY ERRED IN CONVICTING THE
ACCUSED DESPITE THE FAILURE OF THE PROSECUTION TO PASS THE TEST UNDER SEC. 4,
RULE 133, RULES OF COURT.
B. THE COURT OF APPEALS GRAVELY ERRED IN BASING THE JUDGMENT OF CONVICTION ON MERE PRESUMPTION OF GUILT.
On the first assigned error,
petitioner contends that the prosecution failed to show the unbroken chain of
circumstantial evidence to prove the guilt of petitioner, because petitioner
could not have taken the money subject matter of this case in light of the
alleged admission of Treasurer Inocencia Sarmenta that petitioner turned over the money to her.
We find such contention to be
untenable.
There is no dispute that the prosecution failed to adduce
direct evidence showing that petitioner took the money mentioned in the ten informations because no one saw him in flagrante
delicto, that is, in the very act of committing a
crime. However, the lack or absence of
direct evidence does not necessarily mean that the guilt of an accused cannot
be proved by evidence other than direct evidence. Direct evidence is not the sole means of
establishing guilt beyond reasonable doubt since circumstantial evidence, if
sufficient, can supplant its absence.[44] The crime charged may also be proved by
circumstantial evidence, sometimes referred to as indirect or presumptive
evidence.[45] Circumstantial evidence has been defined as
that which “goes to prove a fact or series of facts other than the facts in
issue, which, if proved, may tend by inference to establish a fact in issue.”[46] Circumstantial evidence may be resorted to
when to insist on direct testimony would ultimately lead to setting felons
free.[47]
The standard that should be observed by the courts in
appreciating circumstantial evidence was extensively discussed in the case of People
v.
No general rule can be laid down as
to the quantity of circumstantial evidence which in any case will
suffice. All the circumstances proved must be consistent with each other,
consistent with the hypothesis that the accused is guilty, and at the same time
inconsistent with the hypothesis that he is innocent, and with every other
rational hypothesis except that of guilt.
It has been said, and we believe correctly, that the circumstances proved should constitute an unbroken chain which leads to one fair and reasonable conclusion which points to the accused, to the exclusion of all others, as the guilty person. From all the circumstances, there should be a combination of evidence which in the ordinary and natural course of things, leaves no room for reasonable doubt as to his guilt. Stated in another way, where the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with innocence and the other with guilt, the evidence does not fulfill the test of moral certainty and is not sufficient to convict the accused.
In the case at bar, the prosecution
adduced the following circumstantial evidence to show that petitioner, without
authority, pocketed the amounts stated in the infomations:
1. As Internal Auditor of WUP, petitioner changed the
procedure as regards the flow of money from the tellers to the Treasurer. Prior to his appointment as Internal Auditor,
the procedure was that the tellers directly turn over their collections to the
Treasurer without passing through the Internal Auditor. After petitioner became Internal Auditor, the
collections of the tellers are turned over to him and then it is he who turns
over the money to the Treasurer after audit.[49]
2. WUP tellers
Elsa A. Dantes[50]
and Merceditas S. Manio[51]
categorically stated they turned over the money involved in these cases to
petitioner for audit. As evidence
thereof, the signature[52]
of petitioner appears on the ten CTOS.
3. WUP
Treasurer Inocencia Sarmenta
emphatically declared that she has not come across the Cash Turn Over Slips
(CTOS)[53]
involved in these cases and has not received from petitioner the amounts
mentioned therein.[54]
4. Monies
mentioned in the informations were not turned over by
petitioner to Treasurer Sarmenta.[55]
5. A special
audit was conducted by Joaquin Cunanan and Company with
a finding that the amount of P1,714,889,28, which included, among other things,
the amounts alleged in the informations, was
misappropriated and not deposited with the bank.[56]
6. When the
special audit was still being conducted, petitioner submitted his letter of
resignation. Not having secured his
clearance from WUP, petitioner left without making any action to clear his
name.[57]
In this case, we hold that the circumstantial evidence
presented by the prosecution warrants the finding of guilt of petitioner. Under
Rule 133, Section 4, of the Rules of Court, it is stated that there is
sufficiency of circumstantial evidence when: (1) there is more than one
circumstance; (2) the facts from which the inferences are derived are proven; and
(3) the combination of all the circumstances is such as to produce a conviction
beyond reasonable doubt.[58] The circumstances above-mentioned upon which
the conviction of petitioner is anchored, satisfactorily meet the requirements
of the rules.
The defense of petitioner is
denial. He denies changing the procedure
in the flow of money from the tellers to the Treasurer. His statement that it is the tellers who
directly turn over the collections for the day to the Treasurer is belied by
the tellers and the Treasurer. The two
tellers and the Treasurer are one in saying that the collections for the day
pass through petitioner first for audit before the latter turns them over to
the Treasurer. They affirm that such
procedure was implemented and followed when petitioner assumed the office of
Internal Auditor of WUP. Ms. Sarmenta explained that even though there was no written
order to effect the new procedure, they followed the procedure prescribed by
petitioner because they believed he had the authority to do so as Internal Auditor
he being directly under the Office of the President.[59]
We find the evidence of the prosecution to be more credible than that adduced by petitioner. When it comes to credibility, the trial court’s assessment deserves great weight, and is even conclusive and binding, if not tainted with arbitrariness or oversight of some fact or circumstance of weight and influence. The reason is obvious. Having the full opportunity to observe directly the witnesses’ deportment and manner of testifying, the trial court is in a better position than the appellate court to evaluate properly testimonial evidence.[60] It is to be noted that the Court of Appeals affirmed the findings of the RTC. In this regard, it is settled that when the trial court’s findings have been affirmed by the appellate court, said findings are generally conclusive and binding upon this Court. We find no compelling reason to deviate from their findings.[61]
Petitioner’s denial that he changed
the procedure in the flow of money and that he returned the monies he audited
to the tellers cannot prevail over the
affirmative and categorical testimonies of Elsa
A. Dantes, Merceditas S. Manio and Inocencia Sarmenta that they merely followed the procedure that was
laid down by petitioner when he took over as Internal Auditor. Dantes and Manio positively testified that their collections were left
with petitioner and that the same were not returned to them after petitioner
audited the monies because the latter was the one who would turn them over to
the Treasurer. Sarmenta
was firm in saying she had not come across the CTOS involved and that the
monies therein mentioned were not received by her from petitioner. Denial is a self-serving
negative evidence that cannot be given
greater weight than the declaration of a credible witness who testified on
affirmative matters.[62] Like alibi, denial is inherently a weak
defense and cannot prevail over the positive and credible testimony of the
prosecution witnesses.[63]
Further, denial cannot prevail over
the positive testimony of prosecution witnesses who were not shown to have any
ill-motive to testify against petitioner.
In this case, petitioner tried to discredit the prosecution witnesses,
more particularly Dantes, Manio
and Sarmenta, by saying that these people tried to
attribute to him the missing funds because they are jealous of him for
attaining such a lofty position considering that he merely started as a student
assistant. Such attempt will not prosper
there being no competent evidence to buttress such claim. On the contrary, his mere position as
Internal Auditor, even without any written order or memorandum, was sufficient
justification for these people to change the present set-up and to follow what
he prescribed. From the actuations of
these people, we find not jealousy, but trust and respect for petitioner.
Petitioner’s claim that prosecution
witness Inocencia Sarmenta
admitted that she received the amounts contained in the informations
from petitioner deserves scant consideration.
Nowhere in the testimony of Ms. Sarmenta had
she admitted that the amounts involved were turned over to her by
petitioner. What Ms. Sarmenta
said is she never came across the ten CTOS, which means she never received the
amounts therein mentioned.[64] Petitioner would like to make this Court
believe that Ms. Sarmenta received from him the
amounts subject matter of this case. We
quote from the petition:
ATTY. BELTRAN
Q As Treasurer of the
A The teller turn (sic) over to Cielito Gan the cash including the checks, then afterwards, after Cielito Gan received the monis (sic) including checks, he is supposed to turn over the same, sir.
x x x x
ATTY. MERCADO
To you.
WITNESS
A Yes, sir. (TSN,
x x x x
ATTY. BELTRAN
Q And after the Cash Turn Over (sic) slips with the money and the checks is (sic) turned over to Cielito Gan(,) what will happen to the monies(,) if you know?
A He is suppose (sic) to turn (them) over to me, sir.
x x x x
Q When did Cielito Gan turn over to you the cash turn over (sic) slips, the moneys and the checks turned over to him by the tellers?
A He is suppose (sic) to turn over the
moneys and checks on the same date to me after he received and audited the
same, sir. (TSN,
One copy of the CTOS, though, shall be returned to the Internal Auditor as his copy, containing the signature of the treasurer as proof that possession of the other copy of the CTOS as well as the cash/checks collection have been turned over to the treasurer. x x x (DECISION – pp. 12-13)
Upon receipt by the treasurer of the cash/check collection and the other copy of the CTOS, the treasurer deposits the cash/checks collection in the bank. Inocencia Sarmenta testified:
ATTY. BELTRAN
Q Now, when you received the cash turn over (sic) slips, the moneys, the checks from Cielito Gan, what will you do with it (sic)?
A I prepare the deposit slip and deposit
it in our depository bank (
A reading of the testimony shows what
procedure is being followed in the WUP.
Ms. Sarmenta explained that after the tellers
turn over their collection to petitioner, the latter, after auditing the same,
will turn over the same to her so that she will deposit it in the depositary
bank. It is clear that Ms. Sarmenta used the word “supposed” because what should be
done by petitioner is to deliver or turn over the money to Ms. Sarmenta. In the
case at bar, the procedure which petitioner himself prescribed, was not
followed. He himself did not follow the
procedure when he, without authority, pocketed the amounts stated in the informations.
Petitioner argues that the Court of
Appeals erred in basing his conviction on mere presumption of guilt.
We do not agree. Both the trial court and the Court of Appeals
convicted him because the prosecution was able to prove all the elements of the
crime of Theft. The essential elements
of theft are: (1) there was a taking of personal property; (2) the property
belongs to another; (3) the taking was without the consent of the owner; (4)
the taking was done with intent to gain; and (5) the taking was accomplished
without violence or intimidation against the person or force upon things. [66]
Clearly, all these elements have been
shown. The Court of Appeals has this to
say:
Considering, then, from the totality of the prosecution’s testimonial evidence that accused-appellant changed the procedure in regard to the receipt, audit and custody of cash/checks paid to the Wesleyan; that the subject funds were physically turned over by tellers Elsa A. Dantes and Mercedita S. Manio to accused-appellant but that said funds were not physically turned over by accused-appellant to treasurer Inocencia Sarmenta; and that the special external audit report confirmed the losses during the period indicated in the Informations, the conclusion that the funds were taken by accused-appellant is inevitable. Said circumstances, like pieces in a puzzle that fit in the right place, give such inference as they clearly show that actual physical possession of the subject funds last came in the hands of accused-appellant.[67]
Petitioner argues there was no proof
that the checks, as stated in the assailed decision, were encashed
by him. This time, petitioner is correct
that there is no evidence showing that he encashed the
checks because the checks are not included in the cases filed against him. The subject matter of the ten informations filed against him are
all cash as mentioned in the ten CTOS.
Petitioner maintains that the
testimonies of Elsa Dantes and Merceditas
Manio that they delivered cash/checks to petitioner are
discordant with the testimony of Inocencia Sarmenta that petitioner delivered them to her for deposit
with the bank.
We find nothing inconsistent with
their testimonies. As discussed above, Inocencia Sarmenta never said
that the amounts mentioned in the informations were
delivered to her. What she meant was
that petitioner was “supposed” to deliver the tellers’ collections to her
pursuant to his prescribed procedure after the tellers delivered them to him
for auditing. In other words, Inocencia Sarmenta could not have
deposited the amounts involved in the bank for the simple reason that
petitioner did not turn over to her the monies that the tellers left with
petitioner.
Petitioner argues that since Inocencia Sarmenta did not come
across the ten CTOS, it does not mean he stole the amounts mentioned therein.
Such argument does not persuade. The statement of Ms. Sarmenta
that she did not come across the ten CTOS must not be considered on its own but
should be considered together with all the other circumstantial evidence. By itself, it cannot establish the fact that
it was petitioner who took the monies.
However, if the other circumstances aforementioned are taken into
account, the picture becomes clear that it is, indeed, petitioner who pocketed
the monies, he being the last person that got hold of them.
Petitioner tries to exonerate himself
by saying that he cannot be held responsible for the missing funds because
External Auditor Jose Reyes admitted that the funds collected on
Such an admission will not absolve
him of liability. The admission is not
relevant in the present case. It is to
be noted that what were deposited on
Petitioner tried to exploit the fact
that nothing in the External Report[68]
and/or in the testimony of Auditor Jose Reyes points to him as the
perpetrator. In such a case, he insisted
that he should be acquitted. The fact
that he was not singled out by the report does not mean he should be set
free. The report, by itself, does not
prove that he committed the crime charged.
The report merely established that something has been lost and that said
loss was committed during his incumbency as Internal Auditor of WUP. However, if the other pieces of circumstantial
evidence are considered, together with the report, his liability is apparent.
Petitioner contends that he cannot be
held liable for the charges on the ground that he was not caught in possession
of the missing funds. This is clutching
at straws. To be caught in possession of
the stolen property is not an element of the corpus delicti
in theft. Corpus delicti
means the “body or substance of the crime, and, in its primary sense, refers to
the fact that the crime has been actually committed.”[69] In theft, corpus delicti
has two elements, namely: (1) that the property was lost by the owner,
and (2) that it was lost by felonious taking.[70] In
the case before us, these two elements were established. The amounts involved were lost by WUP because
petitioner took them without authority to do so.
Petitioner slammed the prosecution
when it failed to present the tellers’ copies of the CTOS. This will not exonerate him. It must be stressed that the procedure
followed in WUP is for the Internal Auditor to turn over to the Treasurer after
audit the collections given to him by the tellers. It is not the duty of the tellers to directly
give their collections to the Treasurer because the same have to pass through
the Internal Auditor first for audit, and it is the latter who would give the
monies to the Treasurer. This Court
rules that it should be the petitioner who should have presented his copy of
the CTOS to show if the Treasurer, indeed, received the collections from him. This, he did not do. If the Treasurer received the monies from
him, the Treasurer’s acceptance thereof can be seen in his copy of the CTOS
because the Treasurer’s signature can be seen thereon. Even if the tellers’ CTOS were presented, the
signature of the Treasurer cannot be found there for the simple reason that the
tellers remit their collections not to the Treasurer but to petitioner pursuant
to the procedure prescribed by him.
Petitioner faults the prosecution for
not giving him a copy of the Report of the External Auditor and for not allowing
him to explain his side. These will not
exonerate him. Petitioner testified he
was not able to object to the findings of the External Auditor because it was
during the trial of the cases that the report was made.[71] We find this statement to be misleading. The Report of the External Auditor was not
made or finished when the cases were already being heard. The report[72]
is dated
Finally, petitioner’s argument that
the fact that he was arrested in Parañaque does not
mean he fled because he had no knowledge that there were warrants for his
arrest does not hold water. It must be
stressed that petitioner, after learning that he was the one being pointed to
as the culprit during the conduct of the external audit, suddenly resigned and
left the school without securing any clearance.
He was apprehended only after more than two years of searching. Jurisprudence has repeatedly declared that
flight is an indication of guilt. The flight of an accused, in the absence of a
credible explanation, would be a circumstance from which an inference of guilt
may be established 'for a truly innocent person would normally grasp the first
available opportunity to defend himself and to assert his innocence.'[73] Under the circumstances, it is clear that
petitioner tried to evade responsibility for the money that he took. Knowing fully well that he is the suspect, he
suddenly disappeared without any clearance from the school. He did not even try to clear his name
considering that the external audit was already on-going when he fled. Such actuation clearly indicates he is
guilty. It does not matter if he does
not know about the warrants for his arrest because his purpose is precisely to
avoid liability for his actions. The
explanation proffered by petitioner that he resigned because of the pressure
coming from Dantes, Manio
and Sarmenta who pointed to him as the culprit, is
flimsy and does not deserve any consideration.
Going now to the penalties imposed on
petitioner, except for the penalties in Criminal Cases No. 153-AF (4686-R) and 668-AF (4690-R), we find them to
be in order.
In Criminal Cases No. 153-AF (4686-R) and 668-AF (4690-R), the amounts stolen
were P30,819.00 and P25,668.00, respectively. Accordingly, the penalties to be imposed
shall be that prescribed in Article 309(1) of the Revised Penal Code which
reads:
ART. 309. Penalties. – Any person guilty of theft
shall be punished by:
1. The
penalty of prision mayor in its minimum
and medium periods, if the value of the thing stolen is more than 12,000 pesos
but does not exceed 22,000 pesos; but if the value of the thing stolen exceed
the latter amount, the penalty shall be the maximum period of the one
prescribed in this paragraph, and one year for each additional ten thousand
pesos, but the total of the penalty which may be imposed shall not exceed
twenty years. In such cases, and in
connection with the accessory penalties which may be imposed and for the
purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal,
as the case may be.
The penalty imposable is the maximum
period of prision mayor in its minimum
and medium periods. Applying the
Indeterminate Sentence Law, the penalty to be imposed in each is anywhere from
two (2) years, four (4) months and one (1) day of prision
correccional to six (6) years of prision correccional,
as minimum, to anywhere from eight (8) years, eight (8) months and one (1) day
of prision mayor to ten (10) years of prision mayor, as maximum.
WHEREFORE,
premises considered, the decision of the Court of Appeals dated 16 June 2004 in
CA-G.R. CR No. 22073 is AFFIRMED
with the MODIFICATION that in each
of Criminal Cases No. 153-AF (4686-R) and 668-AF
(4690-R), petitioner is sentenced to a prison term of four (4) years, nine (9)
months and eleven
(11) days of
prision
correccional,
as
minimum, to eight (8) years, eight (8)
months and one (1) day of prision mayor,
as maximum.
SO ORDERED.
|
|
MINITA V. CHICO-NAZARIOAssociate Justice |
WE
CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
Associate Justice Associate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice
ATTESTATION
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.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson,
Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII
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’s Division.
REYNATO S. PUNO
Chief
Justice
[1] Penned by Associate Justice Jose C. Reyes, Jr. with Associate Justices Conrado M. Vasquez, Jr. and Rebecca De Guia-Salvador, concurring. Rollo, pp. 22-58.
[2] Records, Vol. II, pp. 334-354.
[3] Rollo, p. 60
[4] Records, Vol. I, p. 3.
[5]
[6] Before the passage of the Speedy
Trial Act of 1998 (Republic Act No. 8493), and its implementation by Supreme
Court Circular No. 38-98 (effectivity:
[7] TSN,
[8] Exh. A, Records, Vol. III, p. 399.
[9] Exh. B, id. at 400.
[10] Exh. C, id at 401.
[11] Exh. D, id. at 402.
[12] Exhs. A-1, B-1, C-1, and D-1, id. at 399-402.
[13] Exhs. A-2, B-2, C-2 and D-2, ibid.
[14] Exhs. A-D, ibid.
[15] TSN,
[16] Exh. E, Records, Vol. III, p. 403.
[17] Exh. F, id. at 404.
[18] Exh. G, id. at 405.
[19] Exh. H, id. at 406.
[20] Exh. I, id. at 407.
[21] Exh. J, id. at 408.
[22] Exhs. E to J, id. at 403-408.
[23] Exhs. E-1, F-1, G-1, H-1, I-1 and J-1, ibid.
[24] Exhs. E-2, F-2, G-2, H-2, I-2 and J-2, ibid.
[25] TSN,
[26] TSN,
[27] TSN,
[28] TSN,
[29] TSN,
[30] Exh. X and X-1, Records, Vol. III, pp. 454-456.
[31] Exhs. A-J, id. at 399-408.
[32] Exh. H, id. at 406.
[33] Records, Vol. 2, pp. 353-354.
[34]
[35]
[36]
[37]
[38] CA rollo, pp. 27-30.
[39]
[40]
[41]
[42]
[43]
[44] People
v. Caparas, G.R. No. 134633,
[45] People
v. Buntag, G.R. No. 123070,
[46] People
v.
[47] Alvarez v. Court of Appeals, 412 Phil. 137, 144 (2001).
[48] Supra note 46 at 44.
[49] TSN,
[50] TSN,
[51] TSN,
[52] Exhs. A-2 to J-2, id. at 399-408.
[53] Exhs. A to J, ibid.
[54] TSN,
[55] TSN,
[56] Exh. X-2, Records, Vol. III, p. 456.
[57] TSN,
[58] Ungsod v. People, G.R. No. 158904,
[59] TSN,
[60] People
v. Escultor, G.R. Nos. 149366-67,
[61] People
v. Aguila, G.R. No. 171017,
[62] People v. Watiwat, 457 Phil. 411, 425-426 (2003).
[63] People
v. Macagaling, G.R. Nos. 109131-33,
[64] TSN,
[65] Rollo, pp. 14-15.
[66] People v. Bago, 386 Phil. 310, 334-335 (2000).
[67] CA rollo, pp. 351-352.
[68] Exh. X, records, Vol. III, p. 454.
[69] People
v. Roluna,
G.R. No. 101797,
[70] Tan v. People, 372 Phil. 93, 105 (1999).
[71] TSN,
[72] Exh. X, Records, Vol. III, p. 454.
[73] People v. Diaz,
443 Phil. 67, 88 (2003).