Republic of the
Supreme Court
THIRD DIVISION
|
CELSO M. MANUEL, EVANGELISTA A. MERU, FLORANTE A.
MIANO, and PEOPLE OF THE Petitioners, - versus - HON. SANDIGANBAYAN (FOURTH DIVISION), MELCHOR M. MALLARE and
ELIZABETH GOSUDAN, Respondents. x---------------------------------------------x MELCHOR M. MALLARE and
ELIZABETH GOSUDAN, Petitioners, - versus - PEOPLE OF THE Respondent. |
|
G.R. No. 158413 G.R. No. 161133 Present: VELASCO, JR., J., Chairperson, PERALTA, ABAD, PERLAS-BERNABE, JJ. Promulgated: February 8, 2012 |
x -----------------------------------------------------------------------------------------------------x
D E C I S I O N
MENDOZA, J.:
These consolidated petitions question
an interlocutory order of the Sandiganbayan as well as its decision and
resolution in Criminal Case No. 25673 for malversation of public funds, entitled
People of the
In the earlier petition, G.R. No.
158413, the petitioners, Celso M. Manuel, Evangelista A. Meru and Florante A.
Miano (petitioners), question the May 20, 2002 Resolution[1] of
the Sandiganbayan granting the Motion to Re-open Proceedings filed by the
accused after their conviction in the September 17, 2001 Decision[2] of
the said tribunal.
In G.R. No. 161133, the petitioners
are the accused assailing the (1) September 17, 2001 Decision of the
Sandiganbayan finding them guilty beyond reasonable doubt of the crime charged;
(2) the July 21, 2003 Resolution[3]
affirming the conviction after reception of additional evidence in the
re-opened proceedings; and (3) the November 13, 2003 Resolution[4]
denying their motion for reconsideration.
The Consolidated Facts on Record
On
That on or
about 17 August 1998, and for sometime prior thereto, in the Municipality of
Infanta, Province of Pangasinan, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, Melchor M. Mallare, being the
Mayor of the said Municipality and a high ranking official, and Elizabeth M.
Gosudan, being the Treasurer of the said Municipality and an accountable
officer of public funds of said municipality by reason of the duties of her
office, while in the performance and taking advantage of their official and
administrative functions, conspiring and confederating with or mutually helping
each other, with grave abuse of confidence, did then and there willfully,
unlawfully and feloniously appropriate, take or misappropriate, or permit any
other person to take wholly or partially, public funds in the custody of the accused
Municipal Treasurer Gosudan amounting to PESOS: ONE MILLION FOUR HUNDRED EIGHTY
SEVEN THOUSAND ONE HUNDRED SEVEN AND 40/100 (₱1,487,107.40), when said
accused disbursed, or authorized, allowed, consented or tolerated the
disbursement, of public funds in the amounts of: (1) ₱995,686.09 for unlawful personal loans to several municipal officials and
employees including themselves; (2) ₱291,421.31 for payments without the requisite appropriation; and (3) ₱200,000 for withdrawals recorded as cash
disbursement, said disbursement being in violation of the Constitution, law,
rules and regulation, to the damage and prejudice of the Government and public
interest.
CONTRARY TO LAW.
The Information ascribed to Mallare
and Gosudan (accused) the following acts of alleged unlawful
disbursement, constituting the elements of the crime of Malversation of Public
Funds, to wit: 1) ₱995,686.09 for unlawful personal loans to several
municipal officials and employees including themselves; 2) ₱291,421.31
for payments without the requisite appropriation; and 3) ₱200,000.00 for
withdrawals recorded as cash disbursements.
Upon being
arraigned on
The issues
posed before the Sandiganbayan were the following:
(1)
Whether or
not accused Municipal Treasurer Elizabeth M. Gosudan committed the crime of
Malversation of Public Funds when she granted personal loans to the municipal
officials and employees, including herself and her co-accused Municipal Mayor
Melchor M. Mallare, from the municipal funds, despite the fact that the full
amount of said loan had been completely reimbursed or restituted at the exit
conference.
(2) Whether or not accused Municipal Mayor
Melchor M. Mallare has conspired with his co-accused Municipal Treasurer
Gosudan in the commission of the crime of Malversation of Public Funds.
During the
trial, the prosecution presented several documents and the lone testimony of Emelie
S. Ritua, State Auditor II of the Commission on Audit (COA). The
defense, on the other hand, presented their own documents and Gosudan as its
only witness.
On
WHEREFORE, the
herein two (2) accused, MELCHOR M. MALLARE and ELIZABETH M. GOSUDAN, are hereby
found GUILTY beyond reasonable doubt of the crime of MALVERSATION OF PUBLIC
FUNDS, defined and penalized under the first paragraph, subparagraph 4, Article
217, Revised Penal Code, and each of them is sentenced under the Indeterminate
Sentence Law to suffer the penalty of imprisonment of from Thirteen (13) Years
and Four (4) Months, as minimum, to Nineteen (19) Years and Four (4) Months, as
maximum, both of reclusion temporal, and also to suffer the penalty of
perpetual special disqualification. Further, accused Melchor M. Mallare is hereby
sentenced to pay a fine of ₱300,998.59, accused Elizabeth M. Gosudan to pay a
fine of ₱774,285.78, and both to pay the costs.
SO ORDERED.[6]
In reaching
said determination, the Sandiganbayan gave the following reasons:
Going now to
the essential elements of the crime of Malversation of Public Funds, the
following facts must concur:
(1)
That the accused is a public officer;
(2)
That he/she
had custody and/or control of funds
by reason of his/her office;
(3)
That the
funds involved were public funds for
which he/she is accountable; and
(4)
That he/she appropriated or consented, or through abandonment or through negligence,
permitted another person to take said public funds.
On the first
element, as borne by the record of this case, and as specifically stipulated by
the parties per the Pre-Trial Order, dated 7 February 2000, the accused Melchor
M. Mallare and Elizabeth M. Gosudan are public officers at the time of the
commission of the alleged offense, the former being the Municipal Mayor and the
latter the Municipal Treasurer of Infanta, Pangasinan. On the second and third
elements, as Municipal Treasurer, accused Gosudan had the duty to have custody
and the obligation to exercise proper management of the municipal funds of
Infanta, Pangasinan, and accused, Mallare, as the local chief executive, is
responsible for the supervision of all government funds and property pertaining
to his agency, the Municipality of Infanta, Pangasinan.
Anent the
fourth element, the record is replete with evidence showing that accused
Treasurer Gosudan herself admitted that she gave the missing amount to
several municipal officials and employees, as witness the following facts:
1.
Per the testimony of COA Auditor Emelie S. Ritua on
the witness stand, when she and her audit team told the Treasurer to produce
immediately the missing funds and to explain why the shortage have [had]
occurred x x x [s]he told [them] that she [could]not produce immediately a part
of the shortage because they were loaned out to some of the officials and
employees; and that [s]he presented to them an informal list of the officials
and employees who were granted IOUs or vales or pautang.
2.
The fact of the accused Treasurer having given the
subject amounts to the municipal officials and employees named in the
unofficial list is not denied by her, as the lone witness for the
prosecution, she and her counsel merely insisting that the amounts were not
given as loans but as vales or pautang.
3.
The confirmation letters prepared by COA Auditor
Ritua wherein the persons named in the accused Treasurers informal list of
borrowers acknowledged by their signatures at the bottom thereof that they have
outstanding loan balance from her, further prove beyond reasonable doubt that
said accused Treasurer loaned out to said persons amounts from the municipal
funds.
4.
The insistence of accused Treasurer Gosudan that the
subject amounts that she gave to the aforenamed persons, including herself and
the accused Mayor, were not loans but were vales pautang, salary
advances cash advances, travel expenses, gasoline expenses and/or funds
used for purchase of spare parts of municipal vehicle is belied by her own
admission that the amounts of these vales were not covered by the required
vouchers (with supporting papers) signed by accused Municipal Mayor Mallare and
were not entered in the cash book because they were not an official cash
advance, and she could no longer remember what particular amount is for which
specific purpose.
5.
The foregoing naked claims and admissions of accused
Treasurer Gosudan lead Us to the inevitable conclusion that the amounts she
gave to the municipal officials and employees, including herself and her
co-accused Mayor Mallare, were nothing but personal loans taken from the cash
account of the
6.
As already stated earlier, the full amount of the
shortages found by the COA audit team (which constitute the subject personal
loans, as already determined) was fully restituted (according to COA Auditor
Ritua) or reimbursed (according to accused Gosudan), as shown in Official
Receipts all issued in the name of accused Gosudan.[7]
The
Sandiganbayan further stated that Gosudans acts of allowing other persons to borrow
municipal funds constituted solid proof of malversation. In the case of Mallare,
his act of getting or accepting the subject loan for himself in the amount of
₱300,998.59 from Gosudan amounted to a conspiracy with the latter in the
commission of the crime of malversation. The full restitution of the total
amount of the loaned public funds did not exonerate Mallare and Gosudan because
the crime of Malversation of Public Funds was already consummated upon the
latters granting of the loans, and upon the formers acceptance and taking of
the amounts lent to him. Restitution of the loaned amounts could only mitigate
their civil liabilities, not exonerate them from criminal liability. The
pertinent portions of the Sandiganbayan Decision read as follows:
The foregoing
discussion leads us to the inevitable conclusion that accused Municipal
Treasurer Gosudan committed the crime of Malversation of Public Funds when she extended
loans or cash advances to herself and several of her co-employees including her
co-accused Mayor Mallare, in the total amount of ₱774,285.78.
On the part of
accused Municipal Mayor Melchor M. Mallare, it is true that not an iota of
evidence was introduced to show that he conspired with accused Treasurer
Gosudan in giving loans to all the municipal officials and employees named in
the confirmation letters, other than that to himself. Hence, he cannot be
faulted for the grant of said loans by his co-accused municipal treasurer.
However, his act of getting or accepting the loan for himself in the amount of ₱300,998.59 from accused Treasurer Gosudan, as
acknowledged by him in the confirmation letter that he signed, is a concrete
proof of his having conspired with her in the commission of the crime of
Malversation of Public Funds in the said amount.
The full restitution
of the total amount of the loaned public funds does not exonerate the herein
two accused, because the crime of Malversation of Public Funds was consummated
upon accused Treasurer Gosudans granting of the loans, and upon accused Mayor
Mallares acceptance and taking of the amount thus loaned to him. The
restitution of the loaned amounts thereafter will not exonerate said accused,
and can merely mitigate their civil liabilities which, however, they have fully
settled when the whole amount of the loan was restituted.[8]
Insisting
on their innocence, Mallare and Gosudan filed a motion for reconsideration[9]
but it was denied in a resolution[10]
dated
On
On
Section 24,
Rule 119 of the Revised Rules of Court on Criminal Procedure, provides that:
Section 24.
Reopening. At any time before finality of conviction, the judge may, motu
propio or upon motion, with hearing in either case, reopen the proceedings to
avoid a miscarriage of justice. The proceedings shall be terminated within
thirty (30) days from the order granting it.
While it may be
true , as ably argued by the prosecution, that an accused has only one day
after receipt of the resolution denying the motion for reconsideration, to file
an appeal, after which the decision attains finality, the same rule does not
apply to cases falling within the jurisdiction of the Sandiganbayan.
Under Rule 45,
Section 2 of the Revised Rules of Procedure, a party desiring to appeal by
certiorari from a judgment or a final order or resolution of the Sandiganbayan
may file within fifteen (15) days from notice of the judgment or final order or
resolution appealed from, or of the denial of the petitioners motion for
reconsideration filed in due time after notice of the judgment.
Otherwise put,
if a motion for reconsideration is filed, the 15-day reglementary period within
which to appeal the decision of the Sandiganbayan is reckoned from the date the
party who intends to appeal received the order denying the motion for
reconsideration.
In the case at
bar, since the motion for reconsideration was filed on October 2, 2001 of the
decision promulgated on September 17, 2001, and the motion for
reconsiderations denial dated November 13, 2001 was only received on December
5, 2001, the instant Motion to Reopen the Proceedings which was filed on
December 20, 2001, may still be entertained, since the period of fifteen (15)
days begun to run all over again from notice of the denial of the resolution.
Hence, the decision convicting the accused has not yet attained finality.
Secondly, and
more importantly, accused-movants plights would certainly result in a
miscarriage of justice if the same were not harmonized with justice and the
facts. No less than their liberty is at stake here. They face a jail term of
thirteen (13) years and four (4) months to nineteen (19) years and four (4)
months. And, if they have to spend this long stretch in prison, their guilt
must be established beyond reasonable doubt. They cannot lose their liberty
because their former lawyer pursued a carelessly contrived strategy of not
presenting herein-accused-movant Mallare to testify, which thus forbade him to
air his side. Under the circumstances, higher interests of justice and equity
demand that herein accused be not penalized for the costly importuning of their
previous lawyer, since their only fault was to repose their faith and entrust
their innocence to him. Losing liberty, therefore, on default or miscalculation
of a lawyer should be frowned upon despite the fiction that a client is bound
by the mistakes of his lawyer.
Xxx xxx xxx
Most assuredly,
therefore, the better part of discretion is to admit and appreciate herein
accused-movant Mallares testimony. Without prejudging, however, the result of
such appreciation, accused-movant Mallares testimony prima facie appears
strong when considered with the fact, that the amount of ₱300,998.59 which he admitted (as shown by his
CONFORME in Exh. K) as his outstanding loan balance, was supposedly used
for a public purpose, and such fact was actually testified to by his co-accused
Elizabeth Gosudan. It was his understanding then, when he signed the pro-forma
confirmation letter, that he was merely informing the COA Auditors the amount
of his cash advance as basis later for liquidation or settlement, and not an
admission of a personal loan.
Xxx xxx xxx
Hence, if only
to truly make the courts really genuine instruments in the administration of
justice, We believe, in order to assure against any possible miscarriage of
justice resulting from accused-movant Mallares
failure to present his side of the story, through no fault of his, that
this case be reopened for reception of evidence and appreciation of his
testimony.[14]
With the Sandiganbayans
On
Thereafter, on July 21, 2003, the
Sandiganbayan issued a resolution,[15]
affirming its September 17, 2001 Decision which convicted Mallare and Gosudan
of the crime of Malversation of Public Funds beyond reasonable doubt after its
reception of additional evidence during the re-opened proceedings. The dispositive portion of the resolution reads:
WHEREFORE, the
Court finds no cogent reason to disturb or amend the Courts Decision
promulgated on
SO ORDERED.[16]
The
Sandiganbayan ruled, among others, that Mallares testimony at the re-opened
proceedings was just an afterthought and could not be given greater weight as
to reverse his conviction.
On
On
On
On
On
The petition in G.R. No. 158413 raises
the following issues:
1) WHETHER OR NOT THE MOTION TO REOPEN THE
PROCEEDINGS WAS PROPER?
2)
WHETHER OR NOT THE MOTION TO REOPEN THE
PROCEEDINGS TOLLED THE RUNNING OF THE PERIOD TO APPEAL?
3)
WHETHER OR NOT THE
4)
WHETHER OR NOT RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR IN EXCESS OF JURISDICTION FOR GRANTING THE MOTION TO REOPEN THE
PROCEEDINGS?[20]
On the
other hand, the petition in G.R. No. 161133 raises the following grounds:
I
UPON THE RECORD, SUBSTANTIAL AND CREDIBLE EVIDENCE
EXISTS, WHICH APPEARS TO HAVE BEEN OVERLOOKED OR DISREGARDED, RAISING A
REASONABLE DOUBT OF THE GUILT OF THE PETITIONERS AT THE VERY LEAST, AND
JUSTIFYING, UNDER WELL- ESTABLISHED RULE, THE EXERCISE OF THE POWER OF THE
SUPREME COURT TO REVIEW THE FINDINGS OF FACT OF THE SANDIGANBAYAN.
II
THE APPEALED DECISION AND RESOLUTIONS OF THE
SANDIGANBAYAN ARE BASED ON A MISAPPREHENSION OF THE EVIDENCE PARTICULARLY
EXHIBIT K THUS LEADING TO ITS ERRONEOUS CONCLUSIONS AND MISTAKEN
INFERENCES.
III
THE SANDIGANBAYAN MISUNDERSTOOD THE NATURE OF A MOTION
FOR THE REOPENING OF PROCEEDINGS, WHICH IT IRONICALLY GRANTED, AND DID NOT
PROPERLY CONSIDER THE ADDITIONAL EXCULPATORY EVIDENCE PRESENTED BY MALLARE, AND
MISAPPLIED A SUPREME COURT DECISION IN DISMISSING THE ADDITIONAL EVIDENCE.[21]
G.R. No. 158413
Petitioners argument
In G.R. No. 158413, petitioners argue
that the motion to re-open proceedings was improper because the earlier filing
of a motion for reconsideration by the accused precluded them from filing a
subsequent motion to re-open proceedings. Petitioners contend that the motion
to re-open proceedings was in reality a second motion for reconsideration
prohibited by the rules. The ground invoked by the accused in the motion, like
the failure of Mallare to take the witness stand, should have been raised prior
to or simultaneous with the filing of the motion for reconsideration because
that ground had been in existence at the time of the filing of the motion for
reconsideration.
Moreover, petitioners
in this case insist that the motion to re-open the proceedings did not toll the
running of the period to appeal. They claim that the accused received a copy of
the order denying their motion for reconsideration on
G.R. No. 161133
Petitioners argument
Petitioners Mallare and Gosudan argue
that the Sandiganbayans decision convicting them of the crime of Malversation
of Public Funds was based on a misapprehension of the evidence because it did
not particularly appreciate the nature and purpose of the reimbursement
expense receipt (RER) which required the signatures of the officials and
employees before Gosudan could give a cash advance. What was extended by Gosudan
to certain officials and employees were not loans but reimbursement expenses
such as cash advances for traveling expenses, purchase of spare parts and
salary advances.
The accused lament that the
Sandiganbayan ignored and misappreciated the testimony of Mallare given after
the re-opening of the proceedings. It was their contention that Mallare did not
conspire with Gosudan, and that the money he received from Gosudan was not used
for a personal, but for a public, purpose. Mallare claims that he did not get
or accept a loan for himself and that he gave good and valid reasons to justify
how the amount of ₱300,998.00 was spent, none of which was for his
personal use.
The accused
further argue that there was full restitution made within a reasonable time,
which the COA auditors acknowledged.
Peoples argument
The prosecution claims that the
Sandiganbayans decision and resolutions took into consideration all the
evidence on record, testimonial and documentary, presented by the prosecution
and the defense during the hearings of the case. It likewise argues that all
the elements of the crime of Malversation of Public Funds were present in this
case considering that 1) Mallare and Gosudan were public officers being the
Mayor and Municipal Treasurer, respectively, of Infanta, Pangasinan; 2) Gosudan,
as Municipal Treasurer, had custody of public funds thereby making her
accountable for these funds; 3) Godusan granted loans to herself and her
co-employees; and 4) Mallare signed the confirmation letter stating that he had outstanding loans received from Gosudan.
The Courts Verdict
Considering
that the Sandiganbayan had issued its July 21, 2003 Resolution affirming its
September 17, 2001 decision, which convicted Mallare and Gosudan of the crime
of Malversation of Public Funds beyond reasonable doubt, the Court need not
pass upon the technical issues in G.R. No. 158413.
The only standing
issue now is whether or not the Sandiganbayan was correct in finding Mallare
and Gosudan guilty beyond reasonable doubt of the crime of Malversation of
Public Funds.
The Court
has carefully reviewed the records and found no reason to disturb the
Sandiganbayans decision of conviction against Mallare and Gosudan for the
crime of Malversation of Public Funds, defined and penalized under Article 217
of the Revised Penal Code, as amended, as follows:
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:
1. The penalty
of prision correccional in its medium
and maximum periods, if the amount involved in the misappropriation or
malversation does not exceed two hundred pesos.
2. The penalty
of prision mayor in its minimum and
medium periods, if the amount involved is more than two hundred pesos but does
not exceed six thousand pesos.
3. The penalty
of prision mayor in its maximum
period to reclusion temporal in its minimum period, if the amount involved is
more than six thousand pesos but is less than twelve thousand pesos.
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 fund 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.
To sustain
a criminal conviction for the crime of Malversation of Public Funds under
Article 217 of the Revised Penal Code, as amended, all the following elements
must be present:
1. That the offender is a public officer;
2. That
he had custody or control of funds or property by reason of the duties of his
office;
3. That
those funds or property were public funds or property for which he was
accountable; and
4. That
he appropriated, took, misappropriated or consented or, through abandonment or
negligence, permitted another person to take them.
Mallare and Gosudan were
accountable for public funds
or property
The
accountability for public funds or property of municipal mayors and treasurers
was well-discussed in the case of People
of the
The funds for which malversation the
appellants stand charged were sourced from the development fund of the
municipality. They were funds belonging
to the municipality, for use by the municipality, and were under the collective
custody of the municipalitys officials who had to act together to disburse the
funds for their intended municipal use.
The funds were therefore public funds for which the appellants as mayor
and municipal treasurer were accountable.
Pantaleon, as municipal mayor, was also
accountable for the public funds by virtue of Section 340 of the Local
Government, which reads:
Section 340. Persons Accountable for
Local Government Funds. Any officer of the local government unit whose duty permits or requires the possession or
custody of local government funds shall be accountable and responsible for the
safekeeping thereof in conformity with the provisions of this title. Other local officials, though not accountable
by the nature of their duties, may likewise be similarly held accountable and
responsible for local government funds through their participation in the use
or application thereof.
In addition, municipal mayors, pursuant to the Local Government Code, are chief
executives of their respective municipalities. Under Section 102 of the
Government Auditing Code of the
Section 102. Primary and secondary
responsibility. (1) The head of
any agency of the government is immediately and primarily responsible
for all government funds and property pertaining to his agency.
Unquestionably,
the source of the subject funds taken by Mallare and Gosudan came from the
municipal funds. As Municipal Mayor and Treasurer, respectively, they had the
sworn duty to safely keep said funds and disburse the same in accordance with
standard procedure because the subject funds belong to the municipality and
must only be used for the benefit of the municipality. The standard practice in
the disbursement of public funds is that they cannot be released and disbursed
without the signatures of the Mayor and the Treasurer. In this case, the
written approvals of Mallare and Gosudan were essential before any release and
disbursement of municipal funds could be made. This was quite clear in Pantaleon
where it was further written:
As a required standard procedure, the
signatures of the mayor and the treasurer are needed before any disbursement of
public funds can be made. No checks can be prepared and no payment can be
effected without their signatures on a disbursement voucher and the
corresponding check. In other words, any disbursement and release of public
funds require their approval. The appellants, therefore, in their capacities as
mayor and treasurer, had control and responsibility over the funds of the
Hence, any
unlawful disbursement or misappropriation of the subject funds would make them
accountable.
Mallare and
Gosudan appropriated, took, misappropriated or consented or, through abandonment
or negligence, permitted another person to take them
The Court
agrees with the Sandiganbayans ruling that there was more than enough evidence
to prove that Gosudan abused her position as Municipal Treasurer of Infanta,
Pangasinan, by committing the crime of Malversation of Public Funds when she
gave out loans in the total amount of ₱774,285.78 to several co-employees
including herself. Gosudan does not deny the fact that she extended thirteen
(13) loans to the following borrowers including herself:[23]
|
|
Name |
Position |
Amount |
Exhibit |
|
|
Onofre M. Mayo
|
Municipal Assessor |
₱55,000.00 |
D |
|
|
Daisy M. Ofalza |
Social Development Officer |
53,842.00 |
E |
|
|
Marivic M. Fortes |
Clerk II |
50,000.00 |
F |
|
|
Elena M. Mores |
S.B. Secretary |
46,420.19 |
G |
|
|
Manolito P. Monta |
Budget Officer |
2,500.00 |
H |
|
|
Luzviminda Maniago |
Municipal Accountant |
17,200.00 |
I |
|
|
Elizabeth M. Gosudan |
Municipal Treasurer |
75,000.00 |
J |
|
|
Melchor M. Mallare |
Municipal Mayor
|
300,998.59
|
K |
|
|
Marle M. Mas |
S.B. Member |
115,625.00 |
L |
|
|
Faustina Pagarigan |
Agricultural Technologist |
500.00 |
M |
|
|
Pedro M. Mallare
|
Private Secretary |
2,500.00 |
N |
|
|
Anacleto Montero |
ABC President |
50,000.00 |
O |
|
|
Manuel Domalanta |
Chief of Police |
5,200.00 |
P
|
When COA Auditor
Emilie S. Ritua (Ritua) requested Gosudan to immediately produce the
missing funds and to explain why there was a shortage in the accounting of
municipal funds, she failed to immediately do so. The best that she could do was
to explain that the subject amount was lent to the said municipal officials and
employees.[24]
Gosudan presented an informal list of the borrowers who were granted vales or
pautang and, who, in turn, gave IOUs.[25]
The
confirmation letters prepared by the audit team of Ritua showed the written acknowledgment
of the said borrowers that they had outstanding loan balances from Gosudan.[26]
Gosudan also admitted that these loans were neither covered by supporting
vouchers signed by the Municipal Mayor nor officially entered in the cash book
as official cash advances. Worse, she could no longer remember the particular
amount loaned and the specific purpose therefor.[27]
In the crime of malversation, all that is
necessary for conviction is sufficient proof that the accountable officer had
received public funds, that he did not have them in his possession when demand
therefor was made, and that he could not satisfactorily explain his failure to
do so. Direct evidence of personal misappropriation by the accused is hardly
necessary in malversation cases.[28]
Clearly, the subject loans that Gosudan
extended to the said municipal officials and employees including herself were
unofficial and unauthorized loans and, therefore, anomalous in nature. The
Sandiganbayan was correct in ruling that said loans were nothing but personal
loans taken from the cash account of the
Like Gosudan, Mallare is also guilty
of the same crime for accepting or getting for himself the loan amount of
₱300,998.59 from Gosudan as evidenced by his written acknowledgment in
the COA Audit Teams confirmation letter. His acceptance of the subject loan
amount of ₱300,998.59 without any supporting official voucher is proof
that there was a conspiracy in the illegal disbursement of the subject loan
amounts.
Conspiracy
exists when two or more persons come to an agreement concerning the commission
of a felony and decide to commit it. Conspiracy need not be proved by direct
evidence and may be inferred from the conduct of the accused before, during and
after the commission of the crime, which are indicative of a joint purpose,
concerted action and concurrence of sentiments. In conspiracy, the act of one
is the act of all. Conspiracy is present when one concurs with the criminal
design of another, indicated by the performance of an overt act leading to the
crime committed. It may be deduced from the mode and manner in which the
offense was perpetrated.
In this case,
petitioners Zacaria A. Candao and Abas A. Candao were co-signatories in the
subject checks issued without the required disbursement vouchers. Their
signatures in the checks, as authorized officials for the purpose, made
possible the illegal withdrawals and embezzlement of public funds in the staggering
aggregate amount of ₱21,045,570.64.[29]
This Court takes note of the following
findings made by the Sandiganbayan regarding the supposed disbursement vouchers
presented by Mallare when he testified at the re-opening proceedings. Thus:
Finally, the
Courts resolution to uphold and sustain the September 17, 2001 conviction of
the two accused was buttressed by a closer scrutiny of documentary evidence
presented during the trial when the case was re-opened, more particularly,
Exhibits 2-Mallare and 3-Mallare, which were the supposed disbursement
vouchers for the public funds received by the accused Mayor Mallare from the
Municipality of Infanta, Pangasinan.
The Court
noticed the irregularities of the two disbursement vouchers. Said vouchers
appear to have been spurious, fabricated and/or falsified, and therefore, the
Court did not give any probative value to these documentary exhibits. The
following are the reasons:
a)
The disbursement vouchers did not have the required
control number in the space provided for it;
b)
The two disbursement vouchers were totally prepared,
approved, and signed by accused Mayor Mallare alone;
c)
The Government Accounting and Auditing Manual
requires:
Sec. 168. Basic
Requirements applicable to classes of disbursements. The following basic
requirements shall be complied with:
CERTIFICATE OF
AVAILABILITY OF FUND Existence of lawful appropriation, the unexpended
balance which, free from other obligations, is sufficient to cover the
expenditure, certified as available by an accounting officer or any other
official required to accomplish the certificate.
The accounting
entries in the two vouchers were totally missing. Expectedly, the certification
for the availability of funds in the disbursement voucher was not signed by the
accountant.
d)
It did not conform with the regulations on
disbursement of expenses that were enumerated at the back portion of the
disbursement voucher form, which, among others, required the following:
i)
The voucher number shall be indicated on the face of
the voucher and on every supporting
documents;
ii)
Attach original supporting documents, bill,
invoices, purchase orders, etc., to the voucher;
iii)
Paid vouchers including its supporting documents,
shall be perforated and conspicuously stamped PAID;
iv)
The RECEIVED FROM portion shall be accomplished
only after the three signatories in the voucher are secured and only upon
actual receipt of payment.
e)
There were no supporting documents to establish
validity of claim. The submission of documents and other evidence was required
to establish the validity and correctness of the claim for payment.
Therefore, despite
the additional evidence presented by accused Mayor Mallare, said accused failed
to overcome the overwhelming evidence proffered by the prosecution which
established the guilt of the accused beyond reasonable doubt.[30]
Finally, the
Court is in accord with the Sandiganbayans ruling that the full restitution of
the lent public funds cannot exonerate Mallare and Gosudan from the crime
charged because payment does not extinguish criminal liability.
It bears stressing that the full
restitution of the amount malversed will not in any way exonerate an accused,
as payment is not one of the elements of extinction of criminal liability. Under the law, the refund of the sum
misappropriated, even before the commencement of the criminal prosecution, does
not exempt the guilty person from liability for the crime. At most, then,
payment of the amount malversed will only serve as a mitigating circumstance
akin to voluntary surrender, as provided for in paragraph 7 of Article 13 in relation to paragraph 10 of the same
Article of the Revised Penal Code.[31]
WHEREFORE, the petition is DENIED. The
SO ORDERED.
JOSE CATRAL
Associate Justice
WE CONCUR:
PRESBITERO
J. VELASCO, JR.
Associate Justice
Chairperson
DIOSDADO M.
PERALTA ROBERTO A.
ABAD
Associate
Justice Associate Justice
ESTELA M.
PERLAS-BERNABE
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 Courts Division.
PRESBITERO
J. VELASCO, JR.
Associate Justice
Chairperson,
Third 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 Chairpersons 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 Courts Division.
RENATO
C. CORONA
Chief Justice
[1] Rollo (G.R. No. 158413), pp. 129-136.
[2]
[3]
[4]
[5] Id. (G.R. No. 158413), at 51-52.
[6]
[7]
[8]
[9] Id. at 101-106.
[10] Id. at 114-118.
[11] Id. at 119-122.
[12] Id. at 123-128.
[13] Id. at 129-136.
[14]
[15] Id. (G.R. No. 161133), at 78-80.
[16]
[17] Id. at 81-101.
[18]
[19] Id. at 475.
[20]
[21]
[22] G.R.
Nos. 158694-96,
[23] Rollo (G.R. No. 158413), p. 83.
[24]
[25]
[26] Id. at 88.
[27] Id. at 88-89.
[28] Zacaria A. Candao v. People, G.R. Nos.186659-710, October 19, 2011.
[29] Id.
[30] Rollo, (G.R. No. 161133), pp. 95-96.
[31] Zenon
R. Perez v. People, G.R. No. 164763,