SECOND DIVISION
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VAN D. LUSPO, Petitioner, - versus - PEOPLE OF THE Respondent. x---------------------------------------------------x
SUPT. ARTURO H. MONTANO and MARGARITA TUGAOEN, Petitioners, - versus - PEOPLE OF THE Respondent. x---------------------------------------------------x C/INSP. Petitioner, - versus - PEOPLE OF THE Respondent. |
G.R. No. 188487 G.R. No. 188541 G.R. No. 188556 Present: CARPIO, J.,
Chairperson, NACHURA, BRION,* ABAD, and MENDOZA, JJ. Promulgated: February
14, 2011 |
x------------------------------------------------------------------------------------x
DECISION
NACHURA, J.:
Petitioners, the accused in Sandiganbayan
Criminal Case No. 20192, in this consolidated petition for review seek the reversal
of the January 19, 2009 decision[1] of
the Sandiganbayan, finding them guilty beyond reasonable doubt of violating Section
3(e) of Republic Act (R.A.) No. 3019. Likewise assailed is the Sandiganbayan’s June
30, 2009 resolution[2] denying
their motions for reconsideration.
The Facts
Acting on a report of the Commission
on Audit (COA) regarding disbursement irregularities for combat, clothing, and
individual equipment (CCIE) in Regions VII and VIII, North Capital Command (CAPCOM),
the Philippine National Police-General Headquarters (PNP-GHQ), through the
Office of the Inspector General (OIG), conducted an investigation of several
officers of the PNP and of a private individual.
The investigation report[3]
disclosed that, on August 11, 1992, the Office of the Directorate for
Comptrollership (ODC) issued two (2) Advices of Sub-Allotment (ASAs),
(001-500-138-92 SN 4361 and 001-500-139-92 SN 4362), each amounting to Five
Million Pesos (P5,000,000.00), purportedly for the purchase of CCIE for
the North CAPCOM. The ASAs were approved “FOR THE CHIEF [Director General Cesar
Nazareno (Nazareno)], PNP” by Director Guillermo Domondon (Domondon), Chief
Director of ODC, and signed for him by Police Superintendent Van Luspo (Luspo),
Chief, Fiscal Division, Budget and Fiscal Services of the ODC. The ASAs were issued without an approved
personnel program from the Directorate for Personnel.[4]
Upon receipt of the ASAs, P/Supt. Arturo
Montano (Montano), Chief Comptroller, North CAPCOM, directed Police Chief
Inspector Salvador Duran, Sr. (Duran), Chief, Regional Finance Service Unit,
North CAPCOM, to prepare and draw 100 checks of P100,000.00 each, for a
total of P10,000,000.00.
The checks were all dated August 12, 1992 and
payable respectively to DI-BEN Trading, MT Enterprises, J-MOS Enterprises, and
Triple 888 Enterprises, each to receive 25 checks. All enterprises were owned
and operated by Margarita Tugaoen (Tugaoen), who collected the proceeds of the
checks from the United Coconut Planters Bank (UCPB), Cubao Branch, on August
12, 13, and 14, 1992. [5]
In a sworn statement dated March 5,
1993 taken by Insp. Felicidad Ramos, a member of the investigating committee,
Tugaoen admitted that she did not deliver any CCIE in exchange for the P10
million worth of checks, because the amount was allegedly intended as payment
for the previously accumulated debts of the PNP.[6]
The nondelivery was confirmed by P/CInsp.
Isaias Braga (P5,900,778.80 and had no
relation at all to the P10 million CCIE purchase under investigation.[7] Their
statements were corroborated by P/Supt. Jesus Arceo, Chief of the
On
the basis of the foregoing findings, the investigating team recommended that
appropriate complaints be filed against Nazareno, Domondon, Montano, Tugaoen,
and Pedro Sistoza (Director Sistoza), Regional Director,
Although
the investigative report did not mention Luspo’s criminal or administrative
liability, the OMB-AFP included him in the charge since his signature appeared
on the questioned ASAs.
Upon a finding that the abovementioned PNP
officials and the private individual conspired to swiftly and surreptitiously
execute the “ghost purchase” of the CCIE, the OMB-AFP recommended the filing of
the criminal information for 100 counts of Malversation of Public Funds under
Article 217 of the Revised Penal Code against them. The OMB-AFP further found
that the ASAs were charged against the “Personal Services Fund” instead of the
“Maintenance and Other Operating Expense Fund” without the approval of the
Department of Budget and Management (DBM). They were released to the North
CAPCOM without the corresponding requisition from the Directorate for Logistics
of the
On January 26, 1994, the Office of
the Special Prosecutor (OSP) approved the resolution of the OMB-AFP, with the
modification that the proper offense to be charged was violation of Section 3(e)
of R.A. No. 3019, as amended, for only one (1) count. The OSP also cleared Director
Sistoza from any participation in the anomalous deal.[11]
Thusly, the accusatory portion of the Information filed with the Sandiganbayan
reads:
That in
or about August 1992, and for sometime subsequent thereto, in Quezon City,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
public officers, namely: Cesar P. Nazareno, being then the Director General;
Guillermo T. Domondon, Director for Comptrollership; Van D. Luspo, Chief,
Fiscal Services and Budget Division; Arturo H. Montano, Chief Comptroller,
North Capcom and Salvador C. Duran, Sr., Chief, Regional Finance Services Unit
(RFSU), North Capcom, all of the Philippine National Police (PNP), while in the
performance of their respective official and administrative functions as such,
acting with evident bad faith and manifest partiality, conspiring,
confederating and mutually helping one another, together with private accused
Margarita B. Tugaoen, did then and there willfully, unlawfully and criminally
cause undue injury to the government (PNP), by causing the preparation, issuance,
release and payment, without supporting documents, of TEN MILLION PESOS (P10,000,000.00) to DI-BEN TRADING,
MT ENTERPRISES, J-MOS ENTERPRISES and TRIPLE 888 ENTERPRISES, all owned and
operated by accused Margarita B. Tugaoen, purportedly for the purchase of
combat, clothing and individual equipment (CCIE) for use of North Capcom
personnel, to which no actual delivery of said CCIE items were ever effected by
accused supplier Margarita B. Tugaoen, thereby giving unwarranted benefits to
the latter accused, to the damage and prejudice of the Philippine government in
the total amount of TEN MILLION (P10,000,000.00)
PESOS, Philippine Currency.
CONTRARY TO LAW.[12]
After
numerous postponements caused by supervening procedural incidents, Nazareno,
Domondon, Luspo, Montano, and Tugaoen were finally arraigned on October 12,
2001. They individually entered a “not guilty” plea.[13]
Duran refused to make any plea during his arraignment on October 26, 2001
hence, a “not guilty” plea was entered for him.[14]
During pre-trial, all accused agreed to the following stipulation of facts:
1.
That
except for accused Margarita Tugaoen, all the accused are public officers at
the time stated in the Information;
2.
That on
August 11, 1992, the Office of the Directorate for Comptrollership of the PNP,
issued two (2) Advices of Sub-Allotment (ASAs) in favor of the North CAPCOM in
the amount of Five Million Pesos (P5,000,000.00) each, making a total of
TEN MILLION [PESOS] (P10,000,000.00) for payment of Combat, Clothing,
and Individual Equipment (CCIE) of PNP personnel.[15]
At the trial, the prosecution presented
the following witnesses: 1) Evangeline Candia (Candia), Chief District
Inspectorate of the Western Police District, and a member of the committee
formed by the PNP to investigate the CCIE anomaly; 2) Felicidad Ramos, also a
member of the PNP investigating committee and the one who took the sworn
statement of Tugaoen during the investigation proceedings; 3) Romulo Tuscano,
Supply Accountable Officer of the PNP; 4) Rafael Jayme, Acting Deputy Inspector
General at the Office of the Inspector General of the PNP at the time material
in the Information; 5) Emmanuel Barcena, executive employee of the Philippine
Clearing House (PCH); 6) Atty. Ismael Andrew Pantua Isip, lawyer of UCPB; and
7) Ma. Cristina Sagritalo-Fortuna, Branch Operations Officer of UCPB, Cubao
Branch.[16]
The foregoing witnesses’ testimonies,
together with documentary pieces of evidence marked as Exhibits “A” to “H-4,”
sought to establish that Nazareno,
Domondon, Luspo, Duran, and Montano acted with evident bad faith and manifest
partiality when they failed to observe the logistic requirement of North CAPCOM
prior to the preparation of the 2 ASAs; and that they violated GHQ-AFP Circular
No. 8 issued on January 25, 1985 when they failed to make any budget proposal
relative to the purchase of CCIE for North CAPCOM in 1992. GHQ-AFP Circular No.
8 mandates that the yearly funding requirement of combat clothing should be
included in the budget proposals of the concerned unit. [17]
The prosecution further endeavored to
prove that the vouchers and related documents pertaining to the procurement of
the P10 million worth of CCIE did not pass the office of Abelardo
Madridejo, Chief Accountant, P10 million intended
for the purchase of CCIE was not liquidated because the records thereof were
not forwarded to the COA.[19]
To substantiate the allegation in the
Information that the checks were delivered to Tugaoen and that she received
their value, the prosecution submitted the sworn statements of Montano and
Tugaoen, and the bank statement prepared by UCPB, Cubao Branch, relative to the
account of Tugaoen, reflecting the transactions on August 12, 13, and 14, 1992.[20]
In
a sworn statement executed during the investigation conducted by PNP-GHQ, Montano
declared that the checks relative to the P10-million ASAs were delivered
to Tugaoen who, in turn, acknowledged receipt thereof in her own sworn
statement executed before
On December 16, 2004, the accused
filed, upon leave of court,[23] a
Consolidated Motion for Demurrer to Evidence,[24]
arguing in the main the inadmissibility, under the best evidence rule, of the
photocopies of the ASAs, the 100 checks, the original printout of the full
master list and detail list of the checks from the PHC, and the bank statement
prepared by the UCPB, respectively docketed as Exhibits A to A-1, C to C-27,
C-28 to C-29c, H to H-4.
Claiming that the investigations
conducted by the PNP were custodial in character and not merely administrative,
the accused argued that the sworn statements of Tugaoen (Exhibits “D” to
“D-5”), Duran (Exhibits “B” to “B-2”), and Montano (Exhibits “F-13” to “F-13-C”)
should not be admitted in evidence because they were not assisted by counsel
when the same were elicited from them.
In
its resolution dated May 13, 2005,[25]
the Sandiganbayan denied the consolidated motion and ruled on the admissibility
of the challenged exhibits in this wise:
There have been several instances where the courts have accorded due credence to the admissibility of microfilm copies or photostatic copies of microfilmed documents such as checks and other commercial documents relying on the factual justification that these checks were microfilmed in the ordinary course of business and there is an ample showing that they were accurate and [have] not been substantially altered. x x x.
Thus, if the witnesses presented attested to the fact that the checks are microfilmed in the ordinary course of business and that the photostats have attained acceptable degree of accuracy, the same are no doubt admissible in evidence in lieu of the original, not on the basis of the “best evidence” rule but because they may be considered as entries in the usual or regular course of business. This Court may also want to take judicial notice of the fact that one of the reliable means to preserve checks and other commercial papers and documents is by way of microfilm. x x x.
In his testimony, prosecution witness Emmanuel E. Barcena has sufficiently explained the procedure ordinarily adopted by the Philippine Clearing House when it receives checks from its various clients. According to him, once the Philippine Clearing House (PCH for brevity) receives the checks for processing and captures the same in a microfilm, it generates a report called the Master List and the Detail List. The data are then eventually stored in a tape and are submitted to Citron (a service provider) to enable the latter to transfer the contents of the tape to a microfiche which would then contain all the reports of the PCH. After the transfer of the contents of the tape from the tape or “disc” to microfiche, Citron returns the microfiche to PCH for archive and future purposes. In case of a request from the banks or from the courts for any data regarding past transactions involving checks received by PCH from its clients, the PCH will have a basis where to get the reproduction of the print-out.
Being a disinterested witness for
the Prosecution, and there being no proof of any personal motive on his part to
misrepresent the facts of the transactions, Barcena has made it clear, for the
guidance and information of this Court, the process or procedure his company
adopts or undertakes when it receives checks for clearing from different banks.
As what he categorically stated, the microfilming of checks is just one of the
regular or routinary functions being performed by PCH. Hence, the reproductions
or copies of the preserved checks it issues, obtained from its existing records
facility such as microfilms, may, therefore, be considered admissible in
evidence.[26]
The
court sustained the admissibility of the sworn statements of Tugaoen, Duran,
and Montano, explaining that the investigations performed by the PNP were
administrative and not custodial in nature because the accused gave their
statements only as witnesses and not as individuals implicated in an offense.
This inference was further based on the observations that the investigating
committee also took the sworn statements of several PNP personnel who were not
included in the charge, and that Nazareno and Domondon, who were not among
those investigated, were criminally charged.
Trial then resumed for the
presentation of evidence for the defense.
None of the accused took the witness
stand. The defense did not dispute the events that transpired, but they
stressed that they did not commit any prohibited act. To debunk the case for
the prosecution, Luspo and his co-accused Domondon presented Leonilo Lapus
Dalut (Dalut), Program and Budget Officer of the Directorate for Personnel, PNP,
from 1989 until 1993.
Testifying
for Luspo and Domondon, Dalut declared that Domondon, as the then Director for Comptrollership, was
authorized to sign ASAs for personal services fund – which include CCIE -
irrespective of amount and without any prior request from the Directorate for
Personnel. This was allegedly shown in the Delegation of Authority[27]
and its corresponding Schedule of Delegation[28]
issued by Nazareno on March 20, 1992, pertinent portions of which state:
SUBJECT: Delegation of Authority
TO: All Concerned
x x x x
(2) In order to free the Chief, Philippine National Police of routine decisions so that he can devote his time to more important functions and in order to prepare subordinate officers for greater responsibility so that police service will be delivered more efficiently and effectively, specific authorities of the Chief, PNP are hereby delegated to the Deputy Chief for Administration, Deputy Chief for Operations, The Chief of Directorial Staff, Directors of the Directorial Staff, Regional Directors and Directors of Support Units as per attached tabulation.
(3) Generally, the delegate will sign for the Chief, PNP but he may sign in his own name when appropriate, depending on the circumstances or nature of the communication. The name and signature of the delegate signing for C[/]PNP shall be preceded by “BY COMMAND OF DIRECTOR GENERAL NAZARENO” or “FOR THE CHIEF, PHILIPPINE NATIONAL POLICE,” whichever is appropriate.
x x x x
|
POWER/FUNCTIONS |
APPROVING AUTHORITY |
REMARKS |
||||||
|
COMPTROLLERSHIP AND
FINANCE |
C. PNP |
DCA |
DCO |
TCDS |
DIR STAFF |
REG’L DIR |
D. ADM OPN SPT UNITS |
|
|
PNP Budget Proposal and
Expenditures |
X |
|
|
|
|
|
|
|
|
Working papers for the PBAC |
|
|
|
|
|
DC |
|
|
|
C. Releases of allotment advices |
|
|
|
|
|
|
|
|
|
1. Releases from Comd
Reserve regardless of amount |
X |
|
|
|
|
|
|
|
|
2. Releases from Prog
amount regardless of amount |
|
|
|
|
|
|
|
|
|
a. CMI |
|
X |
|
|
|
|
|
|
|
b. Fixed Expenditures |
|
|
|
|
DC |
|
|
Upon request of Prog Dir |
|
c. Program Director’s Fund |
|
|
|
|
DC |
|
|
Upon request of Prog Dir |
|
3. Releases for personnel services (01) irrespective
of amount |
|
|
|
|
DC |
|
|
|
Dalut
explained that “DC” refers to the Directorate for Comptrollership, and that the
phrase “Upon request of Prog Dir” means that the Directorate for Personnel requested
the DC for the release of funds. But as clearly shown in the schedule of
authority, request from the Directorate for Personnel is not a prerequisite to
the release of funds for “personnel services 01,” irrespective of amount. Dalut
clarified that it was not the practice of anyone at the Office of the Director
for Personnel to prepare a program chargeable against personnel services before
the Director for Comptrollership could release ASAs for “personnel services 01.”[29]
Domondon
and Luspo also adopted the December 15, 1998 Order of the OSP[30] and
the OMB’s June 9, 1999 Memorandum,[31]
both submitted in Criminal Case No. 20185 pending before the Sandiganbayan.
Criminal Case No. 20185 pertained to the charge of illegal issuance of ASAs in
favor of PNP Regional Command (RECOM) in
For their part, Montano and Tugaoen
reiterated the inadmissibility of the latter’s sworn statements on the ground
that a lawyer did not assist her during the investigation proceedings. To
buttress Montano and Tugaoen’s claim, P/Supt. Felicidad Ramos Guinto, a member
of the team that investigated the North CAPCOM CCIE anomaly, was put on the
witness stand. She declared that Tugaoen expressed her desire to be assisted by
a counsel of her choice, however, there was no more time for her to retain one.[32]
Montano tendered a copy of the
provisions of Section 307, Article 5, Title 5, Book III, Volume I of the
Government and Auditing Manual issued on January 2, 1992, to show that his acts
were in accordance with the rules on expenditures as mandated in the manual.[33]
Duran failed to formally offer
evidence despite the opportunity given him by the Sandiganbayan. As such, he
was declared to have waived his right to do so in an Order dated July 13, 2007.[34]
The Ruling of the
Sandiganbayan[35]
The anti-graft court found sufficient
evidence inculpating Luspo, Duran, Montano, and Tugaoen for conspiring and
confederating with one another to deprive the government/PNP of P10
million, viz.:
Accused Luspo issued the two (2) ASAs (Exhibits “A,” “A-1”) without the authority from the Directorate for Comptrollership nor from the Chief PNP. These ASAs eventually became the basis in the drawing of the one hundred checks signed by accused Duran and Montano that effected the release of the funds intended for the purchase of CCIE items to accused Tugaoen. These series of acts spelled nothing but conspiracy which showed their common design in achieving their one common goal to the damage and prejudice of the government.[36]
Adopting the observations of the
Ombudsman (AFP), the Sandiganbayan elaborated:
The swiftness of how
the supposed transaction of CCIE items at North CAPCOM was consummated at a
record time of two (2) days from the issuance of the ASAs to the encashment of
the checks which normally take weeks if not months (with all
programming/requisition, the bidding process, series of deliveries, and
inherent red tapes) only indicates signs of deep-rooted conspiracy, to wit: 1.
issuance of ASA over and above the approved program of P6 M for CY 1992 and the charging
of the same to funds for personal services (100-10) even without the approval
of the DBM; 2. release of ASA to P100,000.00 each to go around the
rule that purchase order, vouchers and checks above P100,000.00 be signed by the Regional Director; and 4. the
purported documents for the supposed purchases did not go to the usual process
of passing to the Chief Accountant for recording/accounting, and the Regional
Director for approval.[37]
The Information was dismissed as to Nazareno in a resolution
dated March 20, 2007 on account of his death on December 8, 2005. Be that as it
may, the Sandiganbayan discussed his accountability and was found to be
blameless. The court ruled that the prosecution failed to substantiate by
testimonial or documentary evidence Nazareno’s direct or indirect participation
in the anomalous CCIE transaction. There was likewise no showing that he had
the opportunity to scrutinize the documents related to the release of the
questioned P10 million, and that his issuance of the Delegation of
Authority preceded the release of the questioned ASAs by a considerable length
of time, so as to rule out any misgiving that the former was circulated in
order to facilitate the irregular purchases. The Sandiganbayan added that
Nazareno’s indictment was only due to command responsibility under the doctrine
respondeat superior, which, however,
does not exist between police officers and their subordinates.
Domondon
was also exonerated because, by virtue of the Delegation of Authority and
Schedule of Delegation issued by Nazareno, he (Domondon) was authorized to
charge CCIE to “personnel services 01” and to release funds therefor,
irrespective of amount, without a request program from the Directorate of
Personnel. Thus, he could no longer be
faulted if the checks were eventually released to Tugaoen without the required
supporting documents nor could he be held liable for the nondelivery of the
CCIE. The Sandiganbayan took judicial notice of its September 17, 1999 resolution
in Criminal Case No. 20185, dropping Domondon from the criminal information upon
the finding that both the OSP’s December 15, 1998 Order and the OMB’s
memorandum of June 9, 1999 negated Domondon’s
culpability for the crime charged.
Accordingly, the fallo of the January
19, 2009 decision of the Sandiganbayan reads :
WHEREFORE, in the light of all the foregoing, the Court finds accused VAN D. LUSPO, ARTURO H. MONTANO, SALVADOR C. DURAN, SR. and MARGARITA D. TUGAOEN, GUILTY beyond reasonable doubt of the offense of Violation of Section 3(e) of Republic Act No. 3019, and after applying the Indeterminate Sentence Law, there being no aggravating or mitigating circumstances, hereby sentences each of them to suffer the penalty of imprisonment ranging from six (6) years and one (1) month as minimum to ten (10) years as maximum, and to indemnify the Philippine National Police or the government jointly or severally in the amount of Ten Million Pesos (Php 10 Million).
Accused Luspo, Montano and Duran, Sr., being public officers, are henceforth perpetually disqualified from holding public office.
The guilt of accused, GUILLERMO T. DOMONDON, not having been proven beyond reasonable doubt, he is hereby ACQUITTED of the same charge. (The case against accused, Cesar P. Nazareno, has earlier been dismissed in a Resolution dated March 20, 2007 due to his death). Accordingly, let the bond of accused Domondon posted for his provisional liberty be released to him, subject to the usual accounting and auditing procedures of this Court.
The Hold Departure Order dated October 28, 2004, issued against accused Domondon is hereby lifted and set aside.
SO ORDERED.[38]
Luspo,[39]
Duran,[40]
Montano and Tugaoen[41]
separately moved for reconsideration, but their motions were denied in a
consolidated Resolution dated June 30, 2009.[42]
On
July 14, 2009 Luspo filed a petition for certiorari docketed as G.R. No.
118487. Montano, Tugaoen and Duran followed suit on July 21, 2009. Montano and
Tugaoen’s joint petition for certiorari was docketed as G.R. No. 188541, while
Duran’s petition was docketed as G.R. No. 188556. In our Resolution of August
19, 2009[43] the
three petitions were consolidated, assailing as they do similar Sandiganbayan
Decision and Resolution.
The Issues
In G.R. No. 188487, Luspo ascribes
the following errors to the Sandiganbayan:
THE SANDIGANBAYAN’S FINDING THAT THE
PETITIONER WAS GUILTY BEYOND REASONABLE DOUBT OF THE OFFENSE OF VIOLATION OF
SECTION 3(e) OF REPUBLIC ACT NO. 3019 WAS NOT SUPPORTED BY EVIDENCE ON RECORD.
THE PROSECUTION HAS NOT PRESENTED EVIDENCE
WHICH COULD OVERCOME THE PETITIONER’S PRESUMPTION OF INNOCENCE.
THE SANDIGANBAYAN ERRED IN DENYING PETITIONER’S MOTION
FOR RECONSIDERATION OF ITS JANUARY 19, 2009 DECISION.[44]
In
G.R. No. 188541, Montano and Tugaoen raise the following grounds for their
exoneration:
THE SANDIGANBAYAN GRAVELY ERRED AND GRAVELY
ABUSED ITS DISCRETION IN HOLDING THAT THE PETITIONERS ARE DUTY-BOUND TO PROVE
THAT THERE WERE DELIVERIES OF CCIE DESPITE THE PROSECUTION’S ALLEGATION IN THE
INFORMATION THAT THERE WAS NO DELIVERY OF CCIE ITEMS, AND IN HOLDING THAT IT IS
THE PETITIONERS’ DUTY TO PROVE THAT THERE WERE DELIVERIES; AND IN SHIFTING ITS
BURDEN OF PROVING THE ELEMENTS OF THE CRIME AS ALLEGED IN THE INFORMATION, AND
IN HOLDING THAT ACCUSED WILLFULLY SUPPRESSED THEIR TESTIMONIES BECAUSE THOSE
ARE ADVERSE TO THEM BY THEIR FAILURE TO TAKE THE WITNESS STAND;
THE SANDIGANBAYAN GRAVELY ERRED IN BASING ITS
FINDING OF EXISTENCE OF CONSPIRACY AND ITS JUDGMENT OF CONVICTION ON THE BASIS
OF SURMISES AND CONJECTURES BY ADOPTING AND RELYING UPON THE FINDINGS OF THE
OMBUDSMAN DURING PRELIMINARY INVESTIGATIONS, IN UTTER DISREGARD OF THE
CONSTITUTIONAL MANDATE THAT EVERY DECISION OF A COURT SHALL STATE EXPRESSLY AND
DISTINCTLY, THE FACTS AND THE LAW UPON WHICH IT IS BASED;
THE SANDIGANBAYAN GRAVELY ERRED IN HOLDING
THAT THE INVESTIGATIONS CONDUCTED ON PETITIONERS ARE NOT CUSTODIAL
INVESTIGATION AND IN NOT HOLDING THAT THE SWORN STATEMENTS TAKEN BY THE
INVESTIGATING OFFICERS DURING INVESTIGATIONS ARE INADMISSIBLE IN EVIDENCE FOR
BEING VIOLATIVE OF THE CONSTITUTIONAL RIGHTS OF PETITIONERS, PARTICULARLY THEIR
RIGHT TO COUNSEL;
THE SANDIGANBAYAN GRAVELY ERRED AND GRAVELY
ABUSED ITS DISCRETION IN ADMITTING IN EVIDENCE AND IN GIVING THE MERE XEROX
COPIES OF THE CHECKS WHICH WERE MERELY CONDITIONALLY MARKED, PROVATIVE (SIC)
VALUE, AND DESPITE PROSECUTION’S FAILURE TO COMPLY WITH ITS COMMITMENT TO
SUBMIT OR PHYSICALLY PRODUCE THE
ORIGINALS THEREOF;
THE SANDIGANBAYAN GRAVELY ERRED AND GRAVELY
ABUSED ITS DISCRETION IN NOT ACQUITTING THE ACCUSED AND IN BASING THE JUDGMENT
OF CONVICTION ON INSUFFICIENT EVIDENCE OR ON MERE PRIMA FACIE EVIDENCE, WHEN
WHAT IS MANDATORILY REQUIRED IS EVIDENCE THAT ESTABLISHES THE GUILT OF THE
ACCUSED BEYOND REASONABLE DOUBT;
THE SANDIGANBAYAN GRAVELY ERRED AND GRAVELY
ABUSED ITS DISCRETION IN ORDERING PETITIONERS JOINTLY AND SEVERALLY LIABLE WITH
LUSPO AND DURAN TO INDEMNIFY THE PHILIPPINE NATIONAL POLICE OR THE GOVERNMENT,
IN THE SUM OF P10,000,000.00, DESPITE ABSENCE OF ANY FINDING WHO
ACTUALLY APPROPRIATED THE ENTIRE SUM OR ANY PART OF SAID AMOUNT.[45]
In
G.R. No. 188556, Duran faults the Sandiganbayan in this manner:
THE SANDIGANBAYAN GRAVELY ERRED IN RULING
THAT PETITIONER WAS IN CONSPIRACY WITH HIS CO-ACCUSED.
THE SANDIGANBAYAN GRAVELY ERRED IN RULING
THAT PETITIONER WAS NOT MERELY PERFORMING A MINISTERIAL FUNCTION AND AS SUCH
INCURS NO CRIMINAL LIABILITY FOR SUCH MINISTERIAL ACT.
THE SANDIGANBAYAN GRAVELY ERRED IN NOT
ADHERING TO THE FINDINGS OF THE PNP INVESTIGATING COMMITTEE, WHICH FOUND NO PROBABALE
CAUSE AGAINST PETITIONER.
THE SANDIGANBAYAN GRAVELY ERRED IN FINDING
PETITIONER GUILTY BEYOND REASONABLE DOUBT OF VIOLATING R.A. NO. 3019, AS
AMENDED, OTHERWISE KNOWN AS THE ANTI-GRAFT AND CORRUPT PRACTICES ACT.[46]
The Ruling of the Court
Petitioners were found by the
Sandiganbayan to have violated Section 3(e) of R.A. No. 3019, which provides, as
follows:
Section 3. Corrupt practices of public officers. – In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:
x x x x
(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith, or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.
In Cabrera v. Sandiganbayan,[47]
we explained that there are two ways for a public official to violate this provision
in the performance of his functions, namely: (a) by causing undue injury to any
party, including the government; or (b) by giving any private party any
unwarranted benefits, advantage, or preference. In that case, we enumerated the
essential elements of the offense, viz.:
1. The accused
must be a public officer discharging administrative, judicial, or official
functions;
2. He must have
acted with manifest partiality, evident bad faith, or gross inexcusable
negligence; and
3. His action caused undue injury to any party, including
the government, or gave any
private party unwarranted benefits, advantage, or preference in the discharge
of his functions.
There is no dispute that herein
petitioners, except for Tugaoen, are all public officers at the time stated in
the Information. On the other hand, the indictment against Tugaoen, a private
individual, is sanctioned by Section 1 of R.A. No. 3019, thus:
Section 1. Statement of policy. – It is the policy of the Philippine Government, in line with the principle that a public office is a public trust, to repress certain acts of public officers and private persons alike which constitute graft or corrupt practices or which may lead thereto.
The second element provides the
different modes by which the crime may be committed, which are “manifest
partiality,” “evident bad faith,” or “gross inexcusable negligence.”[48]
Manifest partiality and evident bad faith connote that the crime is committed
by dolo, while gross inexcusable
negligence indicates its commission through culpa.[49] In the recent Albert v. Sandiganbayan,[50]
we reiterated the definitions of such modalities, viz.:
There is “manifest partiality” when there is a clear, notorious, or plain inclination or predilection to favor one side or person rather than another. "Evident bad faith" connotes not only bad judgment but also palpably and patently fraudulent and dishonest purpose to do moral obliquity or conscious wrongdoing for some perverse motive or ill will. "Evident bad faith" contemplates a state of mind affirmatively operating with furtive design or with some motive or self-interest or ill will or for ulterior purposes. "Gross inexcusable negligence" refers to negligence characterized by the want of even the slightest care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with conscious indifference to consequences insofar as other persons may be affected.[51]
Evident
bad faith and manifest partiality are imputed to Luspo, Duran, and Montano when
they caused the preparation, issuance, release, and payment of P10,000,000.00,
without supporting documents, to DI-BEN
Trading, MT Enterprises, J-MOS Enterprises, and Triple 888 Enterprises, all owned and operated by Tugaoen.
Owing to the different functions discharged by petitioners,
it is imperative to discuss their individual participation in the scheme that
siphoned P10 million from the PNP funds.
Luspo,
the then Chief of the Fiscal Services and Budget Division of the ODC, is indicted for having allegedly issued
the ASAs without prior authority from his superior, Domondon, Chief Directorate
for Comptrollership. His issuance and signing thereof were allegedly made
without a prior program request from the Office of the Directorate for
Personnel as mandated by the logistic requirements of the PNP. Likewise, he
supposedly violated GHQ-AFP Circular No. 8 issued on January 25, 1985 when he
failed to make any budget proposal relative to the purchase of CCIE for P10
million injury to the coffers of the PNP.
It bears emphasis that the charge
against Luspo’s co-accused Domondon consisted of the same omissions. Both
offered similar documentary and testimonial pieces of evidence for their
exoneration, but the same were appreciated only in Domondon’s favor. The
Sandiganbayan shelved Luspo’s claim that he was authorized by Domondon to sign
the ASAs in the former’s behalf, and tagged the same as self-serving and
unsubstantiated.
In its consolidated comment,
respondent People of the
We disagree with the Sandiganbayan.
A perusal of the records at our and
the Sandiganbayan’s wherewithal reveals the contrary and had the trial court
expanded the range of its probing, it would not have arrived at divergent
conclusions regarding the two accused.
Generally, factual findings of the
anti-graft court are conclusive upon the Supreme Court, except where: (1) the conclusion is a finding
grounded entirely on speculation, surmise and conjectures; (2) the inference
made is manifestly mistaken; (3) there is grave abuse of discretion; (4) the
judgment is based on misapprehension of facts and the findings of fact of the Sandiganbayan are premised on the absence of evidence and are
contradicted by evidence on record.[52]
The last instance attends in the
instant case. Clear and unmistakable in the August 30, 1993 resolution of the
OMB-AFP[53]
is the crucial detail that, on January 31, 1991, Domondon issued a Memorandum
delegating to Luspo and a certain Supt. Reynold Osia (Osia) the authority to
sign for him (Domondon) and on his behalf, allotments for personal services in
the amount not exceeding Five Million Pesos (P5,000,000.00), and in his
absence, the amount of P20,000,000.00. This was, in fact, the hammer
that drove the nail and linked Domondon to the conspiracy theory advanced by
the prosecution.
As previously mentioned, the
Sandiganbayan absolved Domondon of any liability in the issuance of the ASAs by
virtue of the Delegation of Authority and Schedule of Delegation issued by
Nazareno, authorizing him (Domondon) to charge CCIE to “personnel services 01,”
and to release funds therefor, irrespective of amount, without need for a prior
request program from the Directorate of Personnel. The Sandiganbayan also took
judicial notice of the OMB Order dated December 15, 1998 and Memorandum dated June
9, 1999 of the OMB’s legal counsel in Criminal Case No. 20191, stating that
Domondon committed no prohibited act in authorizing the issuance of the ASAs for
RECOM since GHQ-AFP Circular No. 8 allowed the charging of CCIE to either the
Personal Services Fund or Maintenance and Other Operating Expense Fund.
The Sandiganbayan ruled that these
pieces of evidence debunked the prosecution’s allegation that the ASAs were
charged against Personal Services Fund without the necessary realignment
authority from the DBM. As such, the court negated Domondon’s culpability for
the crime charged. We see no reason to treat Luspo differently because the
authority delegated by Nazareno to Domondon inevitably passed down to the
latter’s sub-delegate, Luspo.
The ensuing disquisitions should
enlighten.
In general, national government
agencies (NGAs), such as the PNP, receive their yearly budgetary allocation
from the DBM through an Advice of Allotment.[54]
The amount represented therein is, in turn, distributed/sub-allocated by NGAs
to their support units or departments through the issuance of an ASA (also
known as Sub-Allotment Advice). In the PNP, the power to sub-allocate the
agency’s funds is vested by R.A. 6975 in the PNP Chief, viz.:
Sec. 26. Powers, Functions and Term of Office of the PNP Chief. — The
command and direction of the PNP shall be vested in the Chief of the PNP who
shall have the power to direct and control tactical as well as strategic
movements, deployment, placement, utilization of the PNP or any of its
units and personnel, including its equipment, facilities and other resources.[55] (Emphasis
supplied.)
The law also empowers the PNP Chief
to delegate his myriad duties and authority to his subordinates, with respect
to the units under their respective commands:
Such command and direction of the Chief of
the PNP may be delegated to subordinate officials with respect to the units
under their respective commands, in accordance with the rules and regulation
prescribed by the Commission.[56]
This was
observed through the organizational structure of the PNP. Administrative and
operational support units were put in place to assist the PNP Chief in the
command and direction of the police force. One such unit is the ODC, which assists the
PNP Chief with the management of the financial resources of the PNP. Among the specific functions of this
office are:[57]
1. To coordinate with
the Directorial Staff of the National Headquarters (NHQ)-PNP for the supervision
and preparation of different PNP projects and programs and for the integration
of such projects and programs to the overall PNP program; and
2. To supervise and manage the preparation of
the PNP budget estimates based on data submitted by Program Directors and to
justify the same before reviewing authorities.
Under the ODC’s wing is the Fiscal
Services and Budget Division, charged with the implementation of the plans,
policies, rules, and regulations governing disbursement and collection of funds
for the PNP.[58]
In
sum, the Office of the Directorate for Comptrollership assists the PNP Chief in
determining how the PNP funds will be sub-allocated to the regional commands
and their support units. Any determination made would then be executed by the
Fiscal Services and Budget Division by issuing an ASA with Nazareno’s signature
as the chief financial director of the PNP, in favor of the appropriate command
or support unit.
Section
26 of R.A. No. 6975 also empowers the PNP Chief to issue implementing policies
for the micromanagement of the entire force, viz.:
The
Chief of the PNP shall also have the power to issue detailed implementing
policies and instructions regarding personnel, funds, properties, records,
correspondence and such other matters as may be necessary to effectively carry
out the functions, powers and duties of the Bureau. The Chief of the PNP shall be appointed by the President from among the
senior officers down to the rank of chief superintendent, subject to
confirmation by the Commission on Appointments: Provided, That the Chief of the
PNP shall serve a term of office not to exceed four (4) years: Provided,
further, That in times of war or other national emergency declared by Congress,
the President may extend such term of office. (Emphasis supplied.)
In the exercise of such power,
Nazareno issued a letter-directive on March 20, 1992, entitled “Delegation of
Authority,” wherein he delegated to his subordinate officers several of his
customary authority, ranging from the approval or disapproval of projects to
the signing of correspondence and working papers in his behalf.
Attached thereto is a tabulation of the
delegatee-directors and the tasks entrusted to them. Pertinent to this
controversy are pages 12 to 23 of the tabulation, showing, among others:
|
POWER/FUNCTIONS |
APPROVING AUTHORITY |
REMARKS |
||||||
|
COMPTROLLERSHIP AND FINANCE |
C. PNP |
DCA |
DCO |
TCDS |
DIR STAFF |
REG’L DIR |
D. ADM OPN SPT UNITS |
|
|
PNP Budget Proposal and Expenditures |
X |
|
|
|
|
|
|
|
|
Working papers for the PBAC |
|
|
|
|
|
DC |
|
|
|
C. Releases of allotment advices |
|
|
|
|
|
|
|
|
|
1. Releases from Comd Reserve regardless of amount |
X |
|
|
|
|
|
|
|
|
2. Releases from Prog regardless of amount |
|
|
|
|
|
|
|
|
|
a. CMI |
|
X |
|
|
|
|
|
|
|
b. Fixed Expenditures |
|
|
|
|
DC |
|
|
Upon request of Prog
Dir |
|
c. Program Director’s Fund |
|
|
|
|
DC |
|
|
Upon request of Prog
Dir |
|
3. Releases for personnel services
(01) irrespective of amount |
|
|
|
|
DC |
|
|
|
As testified to by defense witness
Dalut, “DC” referred to Director for Comptrollership, who, at that time, was
Domondon.
Domondon thereafter sub-delegated
such authority to his subordinates Luspo and Osia, through a memorandum dated
January 31, 1991. Relying on the memorandum, Luspo signed ASA Nos.
001-500-138-92 SN 4361 and 001-500-139-92 SN 4362 on August 11, 1992, releasing
P10 million from the Personal Services Fund in favor of
The OSP questions the validity of the
sub-delegation, arguing that Domondon cannot further delegate an already
delegated task. The contention is untenable.
We reckon the kind of duties
discharged by public officers.
Public officers exercise
discretionary and/or ministerial duties. A duty is discretionary if the officer
is allowed to determine how and when it is to be performed and to decide this
matter one way or the other and be right either way.[59] It is not susceptible to delegation because
it is imposed by law as such, and the public officer is expected to discharge
it directly and not through the intervening mind of another.[60]
On the other hand, a ministerial duty
is one that requires neither the exercise of official discretion nor judgment.[61]
It connotes an act wherein nothing is left to the discretion of the person
executing it.[62] It is
practically a mechanical act;[63]
hence, what can be done by the delegate may be sub-delegated by him to others.[64]
Based on the foregoing yardstick, was
the task delegated by Nazareno to Domondon discretionary or ministerial?
A reading of the significant
provisions of the “Delegation of Authority” discloses that the duty delegated
to Domondon was merely ministerial.
2. In order to free the Chief, Philippine National Police of routine decisions so that he can devote his time to more important functions and in order to prepare subordinate officers for greater responsibility so that police service will be delivered more efficiently and effectively, specific authorities of the Chief, PNP are hereby delegated to the Deputy Chief for Administration, Deputy Chief for Operations, The Chief of Directorial Staff, Directors of the Directorial Staff, Regional Directors and Directors of Support Units as per attached tabulation.
3. Generally, the delegate will sign for the Chief, PNP but he may sign in his own name when appropriate, depending on the circumstances or nature of the communication. The name and signature of the delegate signing for C. PNP shall be preceded by “BY COMMAND OF DIRECTOR GENERAL NAZARENO” or “FOR THE CHIEF, PHILIPPINE NATIONAL POLICE”, whichever is appropriate.
7. For the purpose of this Letter-Directive, the term authority shall be understood to mean authority to sign for the C. PNP; the power to require and receive submission; the right to approve or disapprove; the right to give final decisions; and the right to direct and to expect compliance. The authorities conferred/delegated in this Letter-Directive are those of the C. PNP, and therefore authorities inherent to the function of the delegatee are not covered by this publication. x x x
8. Decision/final actions on matters within
the normal or inherent functions/authority of the Directorial Staff, Service
Staff, PNP Administrative and Operational Support Units and Regional Directors
shall be done at their respective levels. In this connection, the Directors of the Directorial Staff are
reminded that they are inherently vested with authority to determine the
actions to be taken by the Command in their specific fields of interest or
responsibility.[65]
Based on these provisions of
Nazareno’s letter-directive, the phrase “release funds for personnel services
01” should be construed to mean that the duty delegated to Domondon was merely
to sign ASAs in behalf of Nazareno to effect the release of funds.
Nazareno could not have referred to
the actual authority of directing when and to whom the funds would be released
because the same was already inherent in Domondon’s functions as the former’s
aide in administering the funds of the PNP.
As mentioned earlier, Domondon, as
the Chief Director of the Office of the Directorate for Comptrollership,
assists the PNP Chief in determining how the PNP funds would be sub-allocated
to the regional commands and their support units. Any determination made by
Domondon and Nazareno would then be implemented by Luspo, as the head of Fiscal
Services and Budget Division, by preparing an ASA and then submitting the same
to Nazareno for his signature. To
shorten the process, Nazareno delegated the routine act of affixing his
signature to the ASA to his financial assistant, Domondon.
Verily then, the duty delegated by
Nazareno to Domondon was the ministerial duty of signing ASAs to effect the release of funds. Being merely ministerial, Domondon was
allowed to sub-delegate, as he did sub-delegate, the task to his subordinate,
Luspo. As such, the signature affixed by Luspo to the ASAs had the same effect
as if it was made by Nazareno himself.
Therefore, Luspo, in the same manner
as Domondon, had satisfactorily adduced evidence of good faith to overturn and
repudiate the imputation of evident bad faith against him. He committed no
prohibited act in signing and issuing the assailed ASAs because there is ample
documentary and testimonial evidence showing that:
(1) Luspo was duly authorized by
Domondon to release personal services funds by signing ASAs in the latter’s
behalf. Luspo’s signature in the ASAs is attributable to Domondon who, in turn,
was authorized by Nazareno to release funds for personnel services through the
issuance of an ASA.
(2) Contrary to the prosecution’s contention, the issuance of ASAs by
the ODC in favor of PNP regional commands did not have to be preceded by a
program request from the Office of the Directorate for Personnel as shown in
the Delegation of Authority and its Schedule of Delegation issued by Nazareno
on March 20, 1992; and
(3) There is no need for the DBM’s
prior authority before the ODC can release funds for “personnel services 01,”
under which CCIE are categorized, as shown by GHQ Circular No. 8 dated October
24, 1985, issued by the then Acting Chief of the PNP, Fidel V. Ramos (Ramos).
The circular was the basis of the OMB in recommending the dismissal of Criminal
Case No. 20185 with respect to Domondon.
The accusations in Criminal Case No. 20185 against Domondon read: “accused Domondon, in conspiracy with his
co-accused, without prior authority from the Department of Budget and
Management (DBM), released or caused to be released sums of money for the
purchase of Combat Clothing and Individual Equipment.” The Sandiganbayan
adopted the OMB’s recommendation and dropped Domondon as an accused in both
cases, and took judicial notice of such ruling when it absolved Domondon from
the charges in Criminal Case No. 20192, subject of the instant petition.
In addition, the Government
Accounting and Auditing Manual[66] classifies
combat clothing under the category of “personal services fund.”
The prosecution alleged that Luspo
failed to observe the logistic requirements of
Exhibit “F-15” is an undated
“Logistics Assessment,” while Exhibit “F-16” is a 6-page more detailed version
dated January 4, 1993. Both were prepared for the North CAPCOM by
Director, P2,067,123.00 in terms of
Allotment Advices, and P32,986,523.07 in terms of supplies and
equipment. In particular, the acquired CCIE amounted to P5,900,778.80.
We do not see the relevance of these exhibits to the purpose for which they
were offered.
The logistical assessment prepared by
The prosecution further averred that
the issuance and signing of the ASAs had no budgetary basis and justification,
because the purchase of CCIE was not included in
GHQ-AFP Circular No. 8 was issued by Ramos
on January 25, 1985 upon the order of the Minister of Defense. When the PNP was created in 1991, it was
intended to be “civilian in character” and free from any military influence.
Verily, the 1985 issuance of an AFP-Chief would no longer have any binding
effect on the officials of PNP.
The finding of the Sandiganbayan that
the ASAs were issued over and above the approved P6,000,000.00 CCIE budget
for calendar year 1992 was not supported by evidence on record. The prosecution
did not present any document showing the PNP or the
To repeat, bad faith does not simply
connote bad moral judgment or negligence. It is a manifest deliberate intent on
the part of an accused to do wrong or to cause damage.[67]
There is nothing on record to show that Luspo was spurred by any
corrupt motive or that he received any material benefit when he signed the
ASAs.
There is likewise no proof that Luspo
acted with palpable bias or favor towards Tugaoen. The prosecution failed to
show that it was Luspo’s duty to search for, negotiate and contract with
suppliers. The only deduction extant from the prosecution’s evidence is that,
being then the Chief of the Fiscal Services and Budget Division of the Office
of the Directorate for Comptrollership, it was Luspo’s duty to distribute the
funds allocated to the PNP by the DBM by the issuance of an ASA in favor of the
force’s regional commands. Once the funds were released from his custody
through the ASAs, his responsibility ceased and it then devolved upon the
recipients of the ASA to see to it that the funds were legally and properly
disbursed for the purpose for which they were released. He had no control over
the disbursement, and thus, he could not be blamed if the funds were eventually
expended for unauthorized or illegal purposes.
Lastly,
the prosecution cannot link Luspo as a conspirator to defraud the
PNP/government on the strength merely of his signature, nor can a valid assumption
be made that he connived with Duran and Montano, who subsequently disbursed the
ASAs.
Proof, not mere conjectures or assumptions, should be proferred to indicate that the accused had taken part in, x x x the “planning, preparation and perpetration of the alleged conspiracy to defraud the government” for, otherwise, any “careless use of the conspiracy theory (can) sweep into jail even innocent persons who may have (only) been made unwitting tools by the criminal minds” really responsible for that irregularity.[68]
Again,
Luspo committed no prohibited act; neither did he violate any law, rule, or
internal order when he signed the ASAs. Logically, his signature in the ASAs
cannot be considered as an overt act in furtherance of one common design to
defraud the government.
Given the above premises, the
acquittal of Luspo is inevitable.
Unfortunately, the immediately
preceding disquisition does not apply to
Duran, Montano, and Tugaoen.
After receiving the ASAs, Montano
instructed Duran to prepare and draw 100 checks for P100,000.00 each for
four (4) payees, DI-BEN Trading, MT Enterprises, J-MOS Enterprises, and Triple
888 Enterprises, the supposed suppliers of the CCIE. The checks were all dated
August 12, 1992 and signed by both Montano and Duran. Montano thereafter released
them to Tugaoen, the owner of the four enterprises, without the required
liquidating and supporting documents mandated by Section 4(6) of Presidential
Decree (P.D.) No. 1445, which provides that claims against government funds
shall be supported by complete documentation. In the succeeding days, Tugaoen encashed the
checks with UCPB, without delivering in exchange a single piece of CCIE for the
uniformed personnel of North CAPCOM.
The Sandiganbayan found indications
of bad faith and manifest partiality in Montano’s and Duran’s actions. We
agree.
The essential element of bad faith is
evident in Montano’s and Duran’s failure to prepare and submit the required
documentation ordinarily attendant to procurement transactions and government
expenditures, as mandated by Section 4(6) of P.D. No. 1445, which states that
claims against government funds shall be supported by complete
documentation.
Among these requirements are:
certification of availability of funds from the command’s chief accountant;[69]
papers relating to public bidding, like the advertisement for bids and
certification of the result of the bidding;[70]
purchase orders; delivery receipts; certificate of availability of fund signed
by the chief accountant and verified by the auditor; and disbursement and
requisition vouchers.[71]
Their absence in the disbursement of P10 million is supported by
evidence on record.
Abelardo F. Madridejo, Chief
Accountant of P10,000,000.00 did not pass [his] office for appropriate
action.”[72]
The PNP Chief Directorate for
Material Services, P/Supt. Jesus Arceo, likewise declared that no document was
submitted to the PNP Logistics Services relative to the procurement of P10
million worth of CCIE for
These statements were corroborated by
State Auditor Erlinda Cargo of COA-PNP North CAPCOM when she stated that, as of
March 23, 1993, no records pertaining to the purchase of P10 million
CCIE were forwarded to the COA.[74]
More significantly, the February 11,
1993 sworn statement of P10,000,000.00
ASAs issued by the ODC, supposedly intended for the purchase of CCIE. As
affirmed by Braga, North CAPCOM received CCIE allocations worth only P5,900,778.80
in 1992, and the same were received in kind and not in the form of ASAs. [75]
Duran avers that his signing of the
checks was a mere ministerial act in compliance with Montano’s directives and
upon reliance on the latter’s assurance that their issuance was supported by
appropriate documents.
The contention has no merit. The 100
checks were made payable to only 4 enterprises at 25 checks each. This should
have sounded alarm bells in the mind of any reasonably judicious accountable
officer, such as Duran, to inquire into the veracity of the transaction concerned.
But he did not even bother to demand that the “alleged” supporting documents be
forwarded to him, in conformity with disbursement rules, to verify the legality
or propriety of the claim.
Under Section 106 of P.D. No. 1445,
an accountable officer who acts under the direction of a superior officer in
paying out or disposing of funds is not exempt from liability unless he
notified the superior officer in writing of the illegality of the payment or
disposition. Duran made no such notification. Instead, he disregarded all
disbursement, auditing, and accounting policies, effectively facilitating the
illegal transaction. He did not require the submission of a procurement
contract, a certificate of requisition, or vouchers before drawing and signing
the checks. He merely mechanically affixed his signature when he was supposed
to act with discernment. As the Chief of the Regional Finance Service Unit of
the
To support his claim of good faith,
Montano tendered a copy of the provisions of Section 307, Article 5, Title 5,
Book III, Volume I, of the Government and Auditing Manual issued on January 2,
1992, to show that he complied with the Rules on expenditures mandated in the
manual. The Rule actually compounds his guilt. We quote the text in full:
Sec. 307. Combat clothing of military personnel and members of para-military forces assigned or detailed with combat units. - The issuance of combat clothing to personnel assigned to combat units shall be guided by the following:
a. Military personnel assigned in combat units are issued authorized combat clothing in kind (GHQ Cir. 3, Feb. 17, 1988).
b. To be entitled to initial combat clothing and subsequent annual combat clothing, military personnel and members of para-military forces must have completed at least six (6) consecutive months tour of duty with a unit engaged in actual combat operations. This additional clothing shall not be granted more often than once every twelve (12) months. The individual clothing record of the military personnel shall be the basis to determine whether the individual was issued this combat clothing or not.
c. The unit commander shall attach a certification to the requisition and issue voucher (RIV), stating therein that the military personnel and members of his unit were actually engaged in combat operations for not less than forty five (45) days within the six (6)-month period for which combat clothing is claimed and have not received said clothing items during the period covered.
To evade culpability, Montano should
have presented a “requisition and issue voucher” to justify his disbursement of
P10,000,000.00 for the supposed purchase of CCIE. But this he did not
do. He only advanced denials and roundabout alibis to surmount the concrete
evidence of the prosecution.
Indeed, there is ample evidence
proving beyond reasonable doubt that Duran and Montano were propelled by
evident bad faith in preparing and issuing 100 checks to facilitate a fictitious
and fraudulent transaction and Tugaoen, in accepting the checks and receiving
their value without giving in exchange a single piece of CCIE.
Duran’s and Montano’s palpable bias in favor
of Tugaoen is shown by their failure to support and justify the checks issued
to Tugaoen’s enterprises with the obligatory paper trail relative to the
conduct of public bidding or any procurement contract.
As aptly discerned by the
Sandiganbayan, the acts of Duran, Montano and Tugaoen evince a bold and
unabashed conspiracy scheme to defraud the government of P10 million:
[T]he drawing of one hundred checks in the amount of one hundred thousand pesos each by [petitioners] Duran and Montano, on that same day of August 12, 1992, eloquently bespeaks of splitting of payments, too glaring to be ignored. These one hundred checks could have been consolidated into four (4) checks only considering that there were only four (4) business establishments with which they claim to have transacted with.[76]
As defined in COA Circular No. 76-41
dated July 30, 1976, splitting, in its literal sense, means dividing or
breaking up into separate parts or portions, or an act resulting in fissure,
rupture, or breach. Within the sphere of government procurement, splitting is
associated with requisitions, purchase orders, deliveries, and payments. One
form of splitting is the breaking up of payments which consist in making two or
more payments for one or more items involving one purchase order. Splitting is
intended to do away with and circumvent control measure, such as the reviewing
authority of a superior official. In this case, the ASA of P10,000,000.00
was split by Duran and Montano into 100 checks of P100,000.00 each to
elude the reviewing authority of Director Sistoza.
The last essential element of the
offense, damage or injury to the government, is amply substantiated by the
certification executed by Romulo Tuscano of the PNP Logistic Support Service,
indicating that there is no available record regarding the delivery of P10
million worth of CCIE for
In fact, Tugaoen herself admitted
that she did not deliver any CCIE in exchange for her receipt of P10
million. The admissibility of such statement was exhaustively discussed by the
Sandiganbayan in its May 13, 2005 resolution, and we adopt its findings
therein.
At any rate, even if we were to hold
that the investigation conducted by the PNP was custodial in nature, the
improprieties that Tugaoen bewail would not prevail against strong and
overwhelming evidence showing her and her co-conspirators’ guilt. Allegations
of impropriety committed during custodial investigation are material only when an extrajudicial admission or confession is the
basis of conviction.[78]
In the present case, the conviction of Montano, Duran, and Tugaoen was not
deduced solely from Tugaoen’s admission, but from the confluence of evidence
showing their guilt beyond reasonable doubt.
In
the same vein, the issue on the admissibility of the photocopies of the ASAs,
the 100 checks, the original printout of the full master list and detail list
of the checks from the PHC, and the bank statement prepared by UCPB[79]
is of no moment.
Penal and Civil Liability For
Violation of Section 3(e), R.A. No. 3019
The penalty for violation of Section
3(e) of R.A. No. 3019 is "imprisonment for not less than six years and one
month nor more than fifteen years, and perpetual disqualification from public
office.”[80] Under
the Indeterminate Sentence Law, if the offense is punishable by a special law,
as in the present case, an indeterminate penalty shall be imposed on the
accused, the maximum term of which shall not exceed the maximum fixed by the
law, and the minimum not less than the minimum prescribed therein.[81]
There being no aggravating and
mitigating circumstances in this case, the Sandiganbayan correctly
imposed the indeterminate prison term of six (6) years and one (1) month, as
minimum, to ten (10) years and one (1) day, as maximum, with perpetual
disqualification from public office.
Duran,
Montano, and Tugaoen shall be solidarily liable for the restitution of the P10,000,00.00
that they defrauded from the funds of the PNP. An offense as a general
rule causes two (2) classes of injuries - the first is the social injury
produced by the criminal act which is sought to be repaired through the
imposition of the corresponding penalty, and the second is the personal injury
caused to the victim of the crime, which injury is sought to be compensated
through indemnity, which is civil in nature.[82]
WHEREFORE, foregoing
considered, the conviction of Salvador Duran, Sr., Arturo Montano, and
Margarita Tugaoen in Sandiganbayan Criminal Case No. 20192 is hereby AFFIRMED.
The
conviction of Van Luspo in Criminal Case No. 20192 is REVERSED and SET ASIDE,
and he is hereby ACQUITTED. The bailbond
posted for his provisional liberty is hereby CANCELLED.
Salvador Duran, Sr., Arturo Montano, and
Margarita Tugaoen are further ORDERED
to jointly and severally indemnify the Philippine National Police of Ten
Million Pesos (P10,000,000.00).
SO ORDERED.
ANTONIO EDUARDO B. NACHURA
Associate
Justice
WE CONCUR:
ANTONIO T.
CARPIO
Associate Justice
|
ARTURO D. BRION Associate Justice |
ROBERTO A. ABAD Associate Justice |
JOSE CATRAL
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.
ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division
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.
RENATO C. CORONA
Chief Justice
* Additional member in lieu of Associate Justice Diosdado M. Peralta, who took no part in the case due to prior participation in the initial proceedings before the Sandiganbayan.
[1] Rollo (G.R. No. 188487), pp. 16-75.
[2] G.R. No. 188487, id. at 87-94.
[3] Common Exhibit for the parties; marked as Exhibit “F” for the prosecution and as Exhibit “7” for the defense.
[4] Exhibits “A” and “A-1”.
[5] Exhibit “H” and its sub-markings.
[6] Exhibit “D”and its sub-markings.
[7] Exhibits “F-14” to “F-14-B,” and Exhibits “F-17” to “F-17-B.”
[8] Exhibit “F-18.”
[9] Presently referred to as OMB-MOLEO (Military and other Law Enforcement Offices.)
[10] Resolution dated August 30, 1993, Records, Vol. I, pp. 10-22.
[11]
[12]
[13]
[14]
[15]
[16] Prosecution’s Formal Offer of Evidence, Records, Vol. II, pp. 150-159.
[17] Exhibit “G” inclusive of its sub-markings.
[18] Exhibit “F-19.”
[19] Exhibit “F-20.”
[20] Exhibit “H” inclusive of its sub-markings.
[21] Exhibit “F-13” inclusive of its sub-markings.
[22] Sworn Statement of Margarita Tugaoen executed on March 5, 1993, Exhibit “D” inclusive of its sub-markings.
[23] Records, Vol. II, pp. 353.
[24]
[25] Records, Vol. III, pp. 4-24.
[26]
[27] Exhibits “6” to “6-A.”
[28] Exhibits “6-B” to “6-Q.”
[29] Pages 51-54 of the Sandiganbayan’s January 19, 2009 decision, supra note 1.
[30] Exhibit “9.”
[31] Exhibit “10.”
[32] Pages 54-55 of the Sandiganbayan decision; supra note 1.
[33] Exhibit “12.”
[34] Records, Vol. III, pp. 472-473.
[35] Supra note 1.
[36]
[37]
[38]
[39] Luspo’s Motion for Reconsideration was filed on January 28, 2009; Records, Vol. IV, pp. 94-104.
[40] Duran’s Motion for Reconsideration was filed on February 2, 2009; id. at 126-158.
[41] Montano and Tugaoen jointly filed a Motion for Reconsideration on January 28, 2009; id. at 105-125.
[42] Rollo (G.R. No. 188541), pp. 90-97.
[43] Rollo (G.R. No. 188487), pp. 95-96.
[44]
[45] Rollo (G.R. No. 188541), pp. 11-26.
[46] Rollo (G.R. No. 188556), pp. 10-11.
[47] G.R. Nos. 162314-17, October 25, 2004, 441 SCRA 377.
[48] Albert v. Sandiganbayan, G.R. No.
164015, February 26, 2009, 580 SCRA 279, 290, citing Gallego, et al. v.
Sandiganbayan, 201 Phil. 379, 383 (1982).
[49] See Uriarte v. People, G.R. No. 169251, December 20, 2006, 511 SCRA 471, 487.
[50] Supra note 48.
[51]
[52] Ong v. People, G.R. No. 176546, September 25, 2009, 601 SCRA 47, 53, citing Suller v. Sanidganbayan, G.R. No. 153686, July 22, 2003, 407 SCRA 201, 208.
[53] Supra note 10, at 14.
[54] Now called General Allotment Release Order (GARO) which is a comprehensive authority issued to all agencies in general, to incur obligations not exceeding an authorized amount during a specified period for the purpose indicated. It shall cover expenditures common to most, if not all, agencies without the need of special clearance or approval from a competent authority. National Budget Circular 440 dated January 3, 1995.
[55] In
connection with Presidential Decree No. 1445: "Resources" refer to
the actual assets of any agency of the government such as cash, instruments
representing or convertible to money, receivables, lands, buildings, as well as
contingent assets such as estimated revenues applying to the current fiscal
period not accrued or collected and bonds authorized and unissued.
[56] R.A. No. 6975, Sec. 26.
[57] 1.
Responsible for the
preparation of the Annual PNP Budget. The Director for Comptrollership is
the principal liaison officer to the Executive Department and other government
offices and agencies on fiscal matters.
2.
Initiates projects in the
furtherance of management improvement programs of the Command.
3. Plans
and supervises the implementation of policies and procedures pertaining to
auditing, accounting and statistical reporting in management activities.
4.
Coordinates with the
Directorial Staff of NHQ-PNP for the supervision and preparation of different
PNP projects and programs and in the integration of such projects and programs
to the over-all PNP program.
5. Supervises
and manages the preparation of the PNP budget estimates based on data submitted
by Program Directors and justifies the same before reviewing authorities.
6. Plans, implements and manages all policies and procedures
concerning financial management, program review and analysis in management
engineering and improvement activities of the organization.
7. Performs other financial duties or functions as the
Chief, PNP and higher authorities may direct from time to time.
SOURCE:
POLICE REGIONAL OFFICE 07 WEBSITE,
<http://ishare.com.ph/pro7/index.php?option=com_content&view=article&id=55&Itemid=113> (visited January 28, 2011).
[58] 8. Maintains and supervises the
operations of the Modified Disbursement System (MDS) Account for units in the
PNP;
9. Coordinates with other office/units concerning the
preparation and distribution of the pay and allowances of uniformed and
non-uniformed personnel of the PNP;
10. Processes and settles claims for pay
allowances/salaries, travel expenses and commutation of leave of PNP personnel.
11. Maintains financial records of the pay and allowances of
uniformed and non-uniformed personnel and other PNP obligations; and,
12. Implements plans, policies, rules and regulations governing
disbursement and collection of funds for the PNP.
SOURCE:
POLICE REGIONAL OFFICE 07 WEBSITE,
<http://ishare.com.ph/pro7/index.php?option=com_content&view=article&id=55&Itemid=113> (visited January 28, 2011).
[59]
[60] Isagani
Cruz, LAW OF PUBLIC OFFICERS (1999 ed.), p. 102.
[61] Metropolitan Manila Development Authority v. Concerned Residents of Manila Bay, G.R. Nos. 171947-48, December 18, 2008, 574 SCRA 661, 670.
[62] Lamb v. Phipps, 22 Phil 456, 490 (1912), citing Black’s Law Dictionary (8th ed., 2004).
[63]
[64] Supra note 60, at 105.
[65] Supra notes 27 & 28.
[66] Volume I, Title 4.
[67] Republic v. Desierto, G.R. No. 131397,
January 31, 2006, 481 SCRA 153, 161.
[68] Sistoza
v. Desierto, 437 Phil. 117, 136 (2002).
[69] Sec. 40, Book VI, 1987 Administrative Code. No funds shall be disbursed, and no expenditures or obligations chargeable against any authorized allotment shall be incurred or authorized without first securing certification of its Chief Accountant or head of accounting unit as to the availability of funds and the allotment to which the expenditure or obligation may be properly charged.
[70] Sec. 1 of Executive Order No. 301 dated July 26, 1987 provides that no contract for public services or for furnishing supplies, materials and equipment to the government or any of its branches, agencies or instrumentalities shall be renewed or entered into without public bidding.
[71] Adopted from July 7, 1997 of the OMB, page 2.
[72] Exhibit “F-19.”
[73] Exhibit “F-18.”
[74] Exhibit “F-20.”
[75] Exhibits “F-14” to “F-14-B.”
[76] Supra note 1, at 61-62.
[77] Exhibit “E.”
[78] Bon v. People, G.R. No. 152160, January 13, 2004, 419 SCRA 101,112, citing People v. Sabalones, 356 Phil. 255, 294 (1998).
[79] Respectively
docketed as Exhibits “A,” “A-1,” “C to “C-27,” “C-28” to “C-29,” “H” to “H-4.”
[80] R.A. No. 3019, Sec. 9.
[81] Nacaytuna
v. People, G.R. No. 171144, November 24, 2006, 508 SCRA 128, 135.
[82] Suller v. Sandiganbayan, supra note 52, at 210, citing Ramos v. Gonong, G. R. No. L-42010, August 31, 1976, 164 Phil. 557, 563.