|
GABRIEL L. DUERO, Petitioner, |
G.R. No. 162212
|
|
- versus - |
Present: Quisumbing,
J., Chairperson, Carpio, Carpio
Morales, Tinga,
and VELASCO, JR., JJ. |
|
PEOPLE OF THE Respondents. |
Promulgated: |
x- - - - - - -
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - -x
QUISUMBING, J.:
From the Sandiganbayan Resolution[1] dated
P46,602.54, and (c) to suffer special perpetual
disqualification from holding public office.[3]
The facts as culled from the records
are as follows:
On March
9, 1981, the Commission on Audit (COA) Regional Director for Region XI ordered
the examination of the cash and accounts of the Municipal Treasurer and all
other accountable officers of, among others, Tandag, Surigao del Sur.[4] On March 16, 1981, the Special Audit Team No.
1[5]
went to petitioner’s office, as then Municipal Treasurer of Tandag,
to conduct an audit of his cash and accounts from June 3, 1980 to March 16,
1981. The audit team made the
examination from March 16 to
As testified to by witnesses, Alberto
J. Sta. Cruz and Fe B. Ileto, initially, petitioner’s
cash and accounts as appearing in his Books of Account yielded an overage of P1,648.02.[6] Upon verification, however, it appeared that
certain infrastructure funds from the Ministry of Public Works and Highways
(MPH)[7]
and interest earned on the municipality’s time deposit with the Philippine
National Bank (PNB) were not entered by petitioner in his Books of Account. As a result, the audit team amended
petitioner’s cash accountability and declared these items as missing funds.
On P339,375.34 and to “take
up [sic] same into account.”[8] Upon verification with the PNB though, the
audit team found that the P277,882.01 consisted
of simulated deposits and withdrawals that cancelled each other out.[9] Hence,
Sta. Cruz sent another written demand to petitioner on P70,993.33.[10]
On even
date, the audit team submitted to the Regional Director the Reports of Examination of the Cash and
Accounts of petitioner. Sta. Cruz
submitted also a Narrative Report.[11]
In both documents, however, the
petitioner’s accountability was further reduced to P63,993.33
after the audit team discovered that it was the Provincial Treasurer who
received the P7,000 as infrastructure fund. Sta. Cruz informed the Regional Director that
the report was not submitted earlier because the audit team had to verify and
re-verify the figures since it involved collections that were not recorded in
the Books of Account. Based on the audit
team’s findings, Sta. Cruz recommended, among others, petitioner’s criminal
prosecution for malversation of public funds.
On
That on or [about] the period comprising the year 1980
to 1981, in the municipality of Tandag, Surigao del Sur, Philippines, and
within the jurisdiction of this Honorable Court, the aforesaid accused being
then the Municipal Treasurer of the said municipality, and as such accountable
for funds received and collected by him by reason of his office, did then and
there, with intent to defraud the government, wilfully,
unlawfully and feloniously, with grave abuse of confidence and by taking
advantage of his official position, take and appropriate for his own personal
use and benefit the amount of Forty Four Thousand Three Hundred Twenty Four
Pesos and Five Centavos (P44,324.05), to the damage and prejudice of the government.
Contrary to law.[13]
Upon arraignment on
While the case was pending with the Tanodbayan, petitioner filed an Urgent
Motion for Reinvestigation/Reconsideration on P46,602.54, after deducting the amounts of P9,890.79
and P7,500, as additional interest earned from the time deposit and purchase
of a motor vehicle, respectively.
In his testimony, witness Sta. Cruz revealed
that he included certain items[18]
amounting to P2,202.72 in petitioner’s
accountability. However, the Tanodbayan Special Prosecutor deducted these
items thereby reducing petitioner’s accountability to P44,324.05, as appearing
in the Information.[19]
The defense presented petitioner
himself, Winifredo A. Perez,[20]
and Timoteo T. Orquina,[21]
as its witnesses during the trial.
Petitioner admitted that the shortage
represented certain infrastructure funds from the MPH and unrecorded interest earned
on the municipality’s time deposit with the PNB,[22]
which he used to disburse cash advances to the municipality’s employees and
officials. He said that instead of recording
the infrastructure funds in the cashbook, he entered it as accounts receivable
in his Post Closing Trial Balance as of
Perez testified that since the
salaries of municipal officials often came late, petitioner allowed them to
make cash advances evidenced by vale
slips. Petitioner returned their vale slips only after their cash
advances have been deducted from their salaries. Sometimes, petitioner allowed them to make
additional cash advances although he had not yet liquidated their previous cash
advances.
Orquina testified that petitioner allowed him
to make cash advances for which he signed vale
slips. Based on their computation, the
two had advanced approximately P9,000 each. On P8,500,
while Orquina paid P7,500. Petitioner returned their vale slips but they could no longer locate it.
On
WHEREFORE, in view of the foregoing, accused Gabriel [L.] Duero is hereby CONVICTED of the crime of Malversation
of Public Funds under Article 217 of the Revised Penal Code in the amount of
P46,602.54, his guilt therefor having been proven beyond reasonable doubt. Considering his full restitution of the
amount malversed which this Court takes as a mitigating circumstance in his
favor, and applying provisions of the Indeterminate Sentence Law, the Court
hereby imposes upon him the indeterminate penalty of imprisonment ranging from
eighteen (18) years of reclusion temporal by way of maximum and ten (10)
years and one (1) day of prision mayor
by way of minimum.
A fine of P46,602.54, an amount equal to the amount
malversed, is imposed, together with special perpetual disqualification from
public office.
SO ORDERED.[25]
Petitioner
moved for reconsideration which the Sandiganbayan
denied on
WHEREFORE, the MOTION FOR RECONSIDERATION dated
SO ORDERED.[26]
Hence, the
instant appeal. Petitioner submits that
the Sandiganbayan erred in finding
that:
I
. . . THE EXAMINATION AND AUDIT REPORT PREPARED AND CONDUCTED BY THE
EXAMINING AUDITORS WAS REGULARLY CONDUCTED AND THE ALLEGED FUND SHORTAGE OF
PETITIONER WAS ACCURATELY ESTABLISHED AS BASIS FOR THE PRESUMPTION RELIED UPON
FOR HIS CONVICTION OF MALVERSATION.
II
. . . ACTUAL RECEIPT BY PETITIONER OF THE DEMAND REQUIRED FOR THE
PRESUMPTION TO ARISE HAD BEEN ESTABLISHED BY COMPETENT EVIDENCE.
III
. . . THE CONSTITUTIONAL RIGHT OF PETITIONER TO DUE PROCESS WAS
VIOLATED BY NOT ALLOWING RE-EXAMINATION AND RE-AUDIT OF THE ALLEGED SHORTAGE OF
THE PETITIONER.
IV
. . . THE TOTALITY OF THE EVIDENCE AGAINST PETITIONER IS SUFFICIENT TO
ESTABLISH PETITIONER’S GUILT OF THE OFFENSE CHARGED BEYOND REASONABLE DOUBT.[27]
Otherwise stated, the basic issue is:
Did the Sandiganbayan err
in finding petitioner guilty beyond reasonable doubt of the crime of malversation of public funds?
Generally, the factual findings of
the Sandiganbayan are conclusive on
this Court. However, there are
established exceptions, such as when (1) the conclusion is a finding grounded
entirely on speculation, surmise and conjecture; (2) the inference made is
manifestly an error or founded on a mistake; (3) there is grave abuse of
discretion; (4) the judgment is based on misapprehension of facts; and (5) the
findings of fact are premised on the absence of evidence and are contradicted
by evidence on record. In these
instances, this Court is bound to review
the facts in order to avoid a miscarriage of justice.[28]
After careful perusal of the parties’
arguments and assiduous examination of the record, we find that such exceptions
do not exist in the instant case. No
reversible error was committed by the Sandiganbayan
in its decision convicting the petitioner as charged.
The crime of malversation
is defined and penalized under Article 217 of the Revised Penal Code, which
reads:
ART. 217. Malversation of public funds or property—Presumption of malversation.—Any public officer
who, by reason of the duties of his office, is accountable for public funds or
property, shall appropriate the same, or shall take or misappropriate or shall
consent, or through 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, shall suffer:
x x
x x
4. The
penalty of reclusion temporal in its medium and maximum periods, if the
amount involved is more than twelve thousand pesos but is less than twenty-two
thousand pesos. If the amount exceeds
the latter, the penalty shall be reclusion temporal in its maximum
period to reclusion perpetua.
In all cases, persons guilty of malversation
shall also suffer the penalty of perpetual special disqualification and a fine
equal to the amount of the funds malversed or equal to the total value of the
property embezzled.
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.
Petitioner
submits that the presumption, as provided under Article 217, last paragraph, cannot
arise in this case because the audit conducted by the Special Audit Team was
irregular, incomplete, and inaccurate. He
argues, in effect, that the alleged shortage was not established. More particularly, the petitioner alleged that
the audit procedure was tainted by the following flaws and deficiencies: (1) from an initial finding of an overage, the
audit team declared a shortage which it repeatedly revised; (2) the shortage
was eventually declared in the COA regional office and not in Tandag, hence, he
was not able to sign the document of shortage; (3) no two disinterested persons
were present when the shortage was declared; (4) the audit team did not make a
formal demand regarding his final accountability; (5) he was not given a notice
of pull out of documents and he was not present when the documents were
actually pulled out; (6) the audit team failed to examine his Post Closing Trial Balance as of December 31, 1980; and (7) there
was a conflict between the amount of shortage determined by the Tanodbayan and by the audit team.
In our opinion, the Sandiganbayan properly rejected the
allegations on the validity of the audit. We are inclined to agree with its observation that
the protracted audit became necessary because of petitioner’s confusing entries
in his Books of Account, his subsequent absence, and the disappearance of some
books under his custody, so much so that it had to be the bookkeeper who had to
turn over the documents to the audit team when they returned to Tandag to further verify and check the documents.[29]
The erroneous computation initially
arrived at by the audit team was caused by the simulated entries made by
petitioner himself. The audit team explained
the computations adequately and the items in the shortage were sufficiently
discussed and explained. In fact,
petitioner did not question the items of shortage. At best, he merely offered an explanation for
the missing funds.[30]
Our pronouncement
in Tinga v. People[31] could not apply in the present case, considering the variance in the factual milieu of the cases.
In Tinga,
the amount of shortage was disputed because the audit team failed to consider
certain records and past transactions of the defendant. Thus, this Court declared that there was an
incomplete and haphazard compliance with the Manual of Instructions to
Treasurers and Auditors and Other Guidelines in the examination made by the
audit team.[32]
We also ruled then that the prima facie presumption under Article 217 of the Revised Penal Code
arises only if there was no issue as to the accuracy, correctness and
regularity of the audit findings and if the fact that funds are missing is
indubitably established.[33]
In the instant case, petitioner
admitted the shortage. While the audit
examination was admittedly replete with errors in determining the correct
amount of shortage, the audit team finally determined it to be P46,602.54.
More importantly, they examined all
records available. To repeat, the errors
were committed due to petitioner’s simulated entries and not because pertinent
documents were disregarded. In fact,
petitioner failed to point any item or record that the audit team overlooked
which would have altered his final accountability. He merely raised the excuse of having utilized
the shortage to disburse cash advances to the municipality’s employees and
officials. Thus, we hold that the
presumption stands.
The
elements of the offense of malversation of public funds
are as follows: (1) the offender is a
public officer; (2) he has the custody or control of the funds or property by
reason of the duties of his office; (3) the funds or property involved are
public funds or property for which he is accountable; and (4) he has
appropriated, taken or misappropriated, or has consented to, or through
abandonment or negligence, permitted the taking by another person of, such
funds or property.[34]
Concededly, the first three elements
are present in this case. It is the last
element, i.e., whether petitioner misappropriated said public funds, that serves as the petitioner’s focus. He claims that he used the missing funds for
disbursement of cash advances, and not for his personal use. The Sandiganbayan
held that this defense is unacceptable, and indicative of petitioner’s guilt. On this point, we are in agreement.
To begin with, this defense had been advanced
in several cases before this Court, but has been found to be without
merit. As held in Rueda,
Jr. v. Sandiganbayan and other cases:
[T]he practice
of disbursing public funds under the “vale” system is not a meritorious defense
in malversation cases. The grant of loans through the “vale”
system is a clear case of an accountable officer consenting to the improper or
unauthorized use of public funds by other persons, which is punishable by law. To tolerate such a practice is to give a
license to every disbursing officer to conduct a lending operation with the use
of public funds.[35] (Emphasis supplied.)
Besides, even assuming that
petitioner’s defense could be acceptable, no vale slips evidencing the cash advances were presented before the Sandiganbayan. True enough, petitioner presented his demand
letters[36]
to Perez and Orquina for the payment of their cash advances. Yet, we find the same wanting for failing to
state with particularity the exact amounts of cash advances made by these officials.
In fact, both of them even testified that their computation varied from petitioner’s
own.
To our
mind, the evidence in this case is thoroughly inconsistent with petitioner’s claim
of innocence.[37] The Sandiganbayan’s
decision ought to be affirmed.
WHEREFORE, the petition is DENIED for
lack of merit. The Decision dated June
6, 2003, and the Resolution dated February 17, 2004, of the Sandiganbayan
in Criminal Case No. 11999, convicting petitioner Gabriel L. Duero of the crime
of malversation of public funds, and sentencing him to an indeterminate penalty
of four (4) years, two (2) months and one (1) day of prision correccional as
minimum to ten (10) years and one (1) day of prision mayor as maximum,
to pay a fine of P46,602.54, and
to suffer special perpetual disqualification from public office, are AFFIRMED.
SO ORDERED.
|
|
LEONARDO A. QUISUMBING Associate Justice |
WE CONCUR:
|
ANTONIO T. CARPIO Associate Justice |
|
|
CONCHITA CARPIO MORALES Associate Justice |
DANTE O. TINGA Associate Justice |
|
PRESBITERO J. VELASCO,
JR. Associate Justice |
|
A T T E S T A T I O N
I attest that the conclusions in the above Decision
had been reached in consultation before the case was assigned to the writer of
the opinion of the Court’s Division.
|
|
LEONARDO A. QUISUMBING Associate Justice Chairperson |
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the
Constitution, and the Division Chairperson’s Attestation, I certify that the
conclusions in the above Decision had been 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] Rollo, pp. 99-111. Penned by
Associate Justice Teresita Leonardo-De Castro, with Associate Justices Diosdado M.
Peralta and Francisco H. Villaruz, Jr. concurring.
[2]
[3]
[4] Exhibits “A” and “1,”
folder of exhibits. Under COA Regional
Office Order No. 81-030.
[5] Composed of Alberto J.
Sta. Cruz (Team Leader); Christopher Rivas, Rosenda Buca and Fe B. Ileto, (Members).
Ileto was
specifically assigned to audit the petitioner’s cash and accounts.
[6] Exhibits “B-7” and “2,”
folder of exhibits. Statement of
Cash Accountability of Accountable Officers as of
[7] Rollo,
p. 80. The Ministry of Public Works and
Highways gives quarterly aid to local governments for the maintenance of
municipal streets and bridges. The
procedure is to record receipt of this amount in the infrastructure cashbook.
[8] Exhibits “M,” “M-1,” “18”
and “18-a,” folder of exhibits.
[9] TSN,
[10] Exhibits “D” and “D-1,”
folder of exhibits.
[11] Exhibits “C” and “8,”
folder of exhibits.
[12] Records, pp. 1-2.
[13]
[14]
[15] Records,
pp. 19-24.
[16]
[17] Exhibits “O” and “20,” folder of exhibits.
[18] Consisting of unrecorded trust fund
collections (P196.89), underposted collection (P5.83), and
attorney’s fees (P2,000).
[19] Supra note 12. When computed, P46,602.54 minus P2,202.72
amounts to P44,399.82. There is a discrepancy of P75.77 which was
not explained by the witnesses.
[20] TSN,
[21] TSN,
[22] Rollo, p. 461. Consisting of unrecorded infrastructure funds
(P22,465.30) and unrecorded interest earned on time deposit (P23,551.78),
for a total of P46,017.08.
[23] Exhibits “19,” “19-A” and “19-B,” folder of
exhibits.
[24] Exhibits “19-B,” “19-C,” “34” and “35,”
folder of exhibits. The petitioner
remitted the amount of P22,465.30 representing the infrastructure funds
from the MPH as evidenced by Official Receipt No. 8899517 dated P22,586.38) plus the cash received
from the petitioner (P1,550.86) were applied to the unrecorded interest
earned on the municipality’s time deposit with the PNB amounting to P24,137.24
as evidenced by Official Receipt No. 7213774 dated April 13, 1984. The total of both amounts is P46,602.54.
[25] Rollo, p. 97.
[26]
[27]
[28] Rueda, Jr. v. Sandiganbayan, G.R. No.
129064, November 29, 2000, 346 SCRA 341, 351-352.
[29] Rollo, p. 86.
[30]
[31] No. L-57650,
[32]
[33]
[34] Barriga v. Sandiganbayan, G.R. Nos.
161784-86, April 26, 2005, 457 SCRA 301, 313; See Sarigumba v. Sandiganbayan, G.R. Nos. 154239-41,
February 16, 2005, 451 SCRA 533, 554; Querijero v. People, G.R. No.
153483,
[35] Supra note 28, at 361; See Cain v. Neri, A.M. No. P-98-1267, July 13, 1999, 310
SCRA 207, 211; Re: Financial Audit in RTC, General Santos City, A.M. No.
96-1-25-RTC, April 18, 1997, 271 SCRA 302, 311; Meneses v. Sandiganbayan,
G.R. No. 100625, May 20, 1994, 232 SCRA 441, 446.
[36] Exhibits “26” and “28,” folder of exhibits.
[37] See
People v. Del Castillo, G.R. No. 153254,