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Vuitton v. Villanueva (A.M. No. MTJ-92-643)

Facts:

This is a complaint filed by Louis Vuitton, S.A., represented by counsel, Quasha Asperilla Ancheta Pea

and Nolasco Law Office, against Judge Francisco Diaz Villanueva of the Metropolitan Trial Court of

Quezon City, Branch36, on the ground that the latter knowingly rendered a manifestly unjust judgment.

A criminal case was file by entitled People of the Philippines vs. Jose V. Rosario", Louis Vuitton, S.A.

accusing the latter of unfair competition as defined by paragraph 1 of Article 189, Revised Penal Code.

But the trial court acquitted the accused because of lack of the element constituting said crime.

Complainant assailed the judge decision for failure to consider the alleged lack of credibility of Felix

Lizardo, violated the constitutional mandate that decisions should be rendered within three (3) months

from submission of the case and ignoring the ruling Converse Rubber Corp vs Jacinto Rubber & Plastics

Co, Inc that "the statute on unfair competition extends protection to the goodwill of a manufacturer or

dealer"

Issue:

Whether or not respondent judge is guilty of knowingly rendering a manifestly unjust judgment?

Decision:

The Revised Penal Code holds a judge liable for knowingly rendering a manifestly unjust judgment.

Article 204 thereof provides:

Any judge who shall knowingly render an unjust judgment in a case submitted to him for decision shall

be punished. The law requires that the (a) offender is a judge; (b) he renders a judgment in a case

submitted to him for decision; (c) the judgment is unjust; (d)he knew that said judgment is unjust. Insome administrative cases decided by this Court, We have ruled that in order to hold a judge liable, it

must be shown beyond reasonable doubt that the judgment is unjust and that it was made with

conscious and deliberate intent to do an injustice. In this case, We are constrained to hold that

complainant failed to substantiate its claims that respondent judge rendered an unjust judgment

knowingly. It merely relied on the failure of respondent judge to mention the motion in the decision, on

his alleged reliance on the testimony of defense witness and on the delay in the promulgation of the

case. But they are not enough to show that the judgment was unjust and was maliciously rendered. A

judgment is said to be unjust when it is contrary to the standards of conduct prescribed by law.

The test to determine whether an order or judgment is unjust may be inferred from the circumstancesthat it is contrary to law or is not supported by evidence. The decision herein rests on two legal grounds:

first, that there was no unfair competition because the elements of the crime were not sufficiently

proven; second, that Jose V. Rosario who was accused as owner/proprietor of COD was not properly

charged as his personality is distinct from that of theCOD's.

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Feliciano Maniego vs People of the Philippines

88 Phil 494 - Law on Public Officers Public Officer and Public Employee the same for Purposes of

the Penal Code

Feliciano Maniego was employed as a laborer to work as the person in charge of delivering summons

and subpoenas in the Municipal Court of Manila. Nevertheless, Maniego was permitted to write motions

for dismissal of prescribed traffic cases against offenders without counsel, and to submit them to the

court for action, without passing through the regular clerk.

Sometime in 1947, a certain Felix Rabia was subpoenaed in connection with a traffic violation. The said

crime has prescribed without Rabia being prosecuted but then Maniego informed Rabia that he is

penalized with a P15 fine; that Maniego can fix this if Rabia can pay him P10. Maniego pocketed the

P10.00 and for this he was later charged for violating Article 210 of the Revised Penal Code which

provides in part:

Any public officer who shall agree to perform an act constituting a crime, in connection with theperformance of his official duties, in consideration of any offer, promise, gift or present received by such

officer, personally or through the mediation of another, shall suffer the penalty of prision correccional in

its minimum and medium periods and fine of not less than the value to the penalty corresponding to the

crime agreed upon if the same shall have been committed.

Maniego assails the charge. He avers, among others, that he is not a public officer as he was merely

hired as an ordinary government employee.

ISSUE: Whether or not Maniego is correct.

HELD: No. Maniego is considered a public officer under Article 203 of the Revised Penal Code whichincludes all persons who, by direct provision of law, popular election or appointment by competent

authority, shall take part in the performance of public functions in the Philippine Government, or shall

perform in said government or any of its branches, public duties as an employee, agent or subordinate

official or any rank or class. That definition is quite comprehensive, embracing as it does, every public

servant from the highest to the lowest. For the purposes of the Penal Code, it obliterates the standard

distinction in the law of public officers between officer and employee. Further, even assuming that

Article 203 cant be applied, although Maniego was originally engaged as a laborer, he was temporarily

performing public functions when he was permitted to draft motions. And as in the performance thereof

he accepted, even solicited, monetary reward, he certainly guilty as charged. The receipt of bribe money

is just as pernicious when committed by temporary employees as when committed by permanentofficials.

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Republic of the Philippines

SUPREME COURT

Manila

EN BANC

DECISION

September 23, 1912

G.R. No. 7540

THE UNITED STATES, plaintiff-appellee,

vs.

VICENTE MENDOZA, defendant-appellant.

Mauricio Ilagan and Fermin Mariano, for appellant.

Attorney-General Villamor, for appellee.TORRES, J.:

Appeal by the defendant from a judgment of conviction rendered in this case by the Honorable Julio

Llorente, judge.

About 8 oclock in the evening of August 1, 1910, Bernabe Mangunay, mounted on a carabao,

approached the house of Mateo del Rosario, situated in the barrio of Apulid, of the pueblo of Paniqui,

Tarlac, to ask for something to eat. As he was then carrying a papaya firebrand and got too close to

the house, the eaves thereof caught fire and its nipa roof immediately started to burn, a large part of

it being consumed. Thereupon Silveria Marcoleta, wife of the owner of the house, Rosario, who was

not in at the time but a neighbors, called out for help and immediately left the house to escape from

the fire, taking her two children and little brother with her. Owing to the prompt arrival of the husband

and several neighbors, the fire was put out before it had burned the whole house.

On the following day the owner of the house, Mateo del Rosario, reported the occurrence to Vicente

Mendoza, the lieutenant of the aforesaid barrio, and accused Bernabe Mangunay of starting the fire.

Mendoza thereupon ordered the junior lieutenant, Candido Yabut, to summon the accused. But when

the latter appeared, said Mendoza took no action whatever, nor did he even report the facts to the

proper higher authority, but, on the contrary, permitted the incendiary to return home.

For the foregoing reasons, and in view of the preliminary investigations made by the justice of the

peace of Paniqui, the provincial fiscal, on September 5, 1910, filed an information in the Court of First

Instance of Tarlac, charging Vicente Mendoza as accessory after the fact in the crime of arson. After

due trial, judgment was rendered on May 22, 1911, whereby the defendant was sentenced to the

penalty of two years four months and one day ofpresidio correccional, to the accessories, with allowance

of one-half of the time of his detention, and to payment of the costs; from which judgment he

appealed.

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Had the accused barrio-lieutenant incurred responsibility by his conduct, he should have been charged

with the crime of prevaricacion under article 355 of the Penal Code, for neglect of the duties of his

office maliciously failing to move the prosecution and punishment of the delinquent.

However, the present case was instituted through an information for concealment of crime, and as it

has been proved that the alleged incendiary, Bernabe Mangunay, was acquitted for lack of evidence,

by judgment rendered in Case No. 544 prosecuted against him in the same court of Tarlac, so it

remains to be determined whether, notwithstanding the acquittal of the principal actor in the crime,

said complaint for concealment can be maintained, and the alleged accessory after the fact convicted.

The responsibility of the accessory after the fact is subordinate to that of the principal in a crime,

because the accessorys participation therein is subsequent to its commission, and his guilt is very

directly related to the principal delinquent in the punishable act; for if the facts alleged are not proven

in the prosecution instituted, or do not constitute a crime, no legal grounds exists for convicting a

defendant as an accessory after the fact of a crime not perpetrated or of parties not guilty. (U.S. vs.

Abison, 3 Phil. Rep., 191.)

In the case at bar there are indications that the fire was accidental and, if so, the acquittal of the

accused in the other case was perhaps due to the lack of proof of his guilt as an incendiary and to the

fact that the acts charged do not constitute a crime. Therefore, upon this hypothesis, and because the

alleged incendiary was acquitted, it is neither proper nor possible to convict the defendant, Mendoza,

as accessory after the fact, of Bernabe Mangunay, who was acquitted of the said crime of arson.

For the foregoing reasons, with reversal of the judgment appealed from, it is proper to acquit, as we

do hereby, Vicente Mendoza, the lieutenant of the barrio of Apulid, Paniqui, with the costs of both

instances de oficio.

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PEOPLE v ABESAMIS

[93 Phil 712 (September 11, 1953)]

PONENTE

Reyes, J.

FACTS

Eduardo Abesamis, a Justice of the Peace, was charged with direct bribery by demanding and receiving

from Marciana Sauri P1,000 to dismiss the case for Robbery in Band with Rape against Emiliano Castillo,

son of said Marciana Sauri.

ISSUE

WON he is guilty of direct bribery

HELD

NO, he is guilty of indirect bribery Ratio: The crime charged does not come under the first paragraph of

RPC Art 210 which states that the act which the public officer has agreed to perform must be criminal.

The dismissal of the complaint is not necessarily criminal and may be proper since there is no allegation

to the contrary. It also cannot fall under the second paragraph of Art 210 since the information does not

state whether the act was executed or not. Thus the facts the information provides may only convict

Abesamis of indirect bribery where the receiving of any gift already consummates the crime.

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Soriano Vs. Sandiganbayan Case Digest

Soriano Vs. Sandiganbayan

131 SCRA 184

G.R. No.L-65952

July 31, 1984

Facts: Tan was accused of qualified theft. The petitioner, who was an Asst. Fiscal, was assigned to

investigate. In the course of the investigation, petitioner demanded Php.4000 from Tan as price for

dismissing the case. Tan reported it to the NBI which set up an entrapment. Tan was given a Php.2000,

marked bill, and he had supplied the other half. The entrapment succeeded and an information was filed

with the Sandiganbayan. After trial, the Sandiganbayan rendered a decision finding the petitioner guilty

as a principal in violating the Anti Graft and Corrupt Practices Act (R.A.3019). A motion for

reconsideration was denied by the Sandiganbayan, hence this instant petition.

Issue: Whether or Not the investigation conducted by the petitioner can be regarded as contract or

transaction within the purview of .RA.3019.

Held: R.A. 3019 Sec.3. Corrupt practices of public officers - In addition to acts or omissions of public

officers already penalized by existing laws, the following shall constitute corrupt practices of any public

officer and are hereby declared to be unlawful: xxx b. Directly or indirectly requesting or receiving any

gift, present, share percentage or benefit, for himself or for other person, in connection with any

contract or transaction between the Govt. and any other party wherein the public officer in his official

capacity has to intervene under the law.

The petitioner stated that the facts make out a case of direct bribery under Art.210 of the RPC and not a

violation of R.A. 3019 sec.3 (b). The offense of direct bribery is not the offense charged and is not

included in the offense charged which is violation of R.A.3019 sec.3 (b).

The respondent claimed that, transaction as used hereof, is not limited to commercial or business

transaction, but includes all kinds of transaction whether commercial, civil, or administrative in nature.

The court agrees with the petitioner. It is obvious that the investigation conducted by the petitioner was

neither a contract nor transaction. A transaction like a contract is one which involves someconsideration as in credit transactions. And this element is absent in the investigation conducted by the

petitioner.

Judgment modified. Petitioner is guilty of direct bribery under Art.210 of the RPC.

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FORMILLEZA vs. SANDIGANBAYAN

Facts:

On December 31, 1983, the appointment of a certain Mrs. Estrella Mutia, an employee of the NIA, was

terminated. But she continued working for the NIA pursuant to the verbal instructions of the regional

director of the NIA. While having her appointment renewed, she was advised to see the Leonor

Formilleza who was to determine the employees to be appointed or promoted. However, the petitioner

refused to attend to her appointment papers unless the latter were given some money. Mrs. Mutia

reported her problem to the Philippine Constabulary (PC)authorities in the province.

An entrapment was planned. During the operation, Mutia gave the 100 pesos marked bill under the

table to Formilleza in the canteen, with 2 other employees in the said table with them. Upon receipt of

the money, she was arrested.

Issue:

Whether the facts and circumstances of the case substantial to convict the accused guilty of indirect

bribery defined under Article 211 of the Revised Penal Code.

Held:

The essential ingredient of indirect bribery is that the public officer concerned must have accepted the

gift or material consideration. There must be a clear intention on the part of the public officer to take

the gift so offered and consider the same as his own property from then on, such as putting away the

gift for safekeeping or pocketing the same. Mere physical receipt unaccompanied by any other sign,

circumstance, or act to show such acceptance is not sufficient to lead the court to conclude that the

crime of indirect bribery has been committed. To hold other wise will encourage unscrupulousindividuals to frame up public officers by simply putting within their physical custody some gift, money,

or other property. Because the petitioner was admittedly handed the money, this explains why she was

positive for ultraviolet powder. It is possible that she intended to keep the supposed bribe money or

may have had no intention to accept the same. These possibilities exist but this court is not certain.

Without certainty, it may not be said that the guilt of the accused in a criminal proceeding has been

proved beyond reasonable doubt.

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People vs Sendaydiego, et. al.

Chester Cabalza recommends his visitors to please read the original & full text of the case cited. Xie xie!

People vs Sendaydiego, et. al.

G.R. No. L-33254 and 33253

January 20, 1978

Facts:

In these three cases of malversation through falsification, the prosecution's theory is that in 1969 Licerio

P. Sendaydiego, the provincial treasurer of Pangasinan, in conspiracy with Juan Samson y Galvan, an

employee of a lumber and hardware store in Dagupan City, and with Anastacio Quirimit, the provincial

auditor, as an accomplice, used six (6) forged provincial vouchers in order to embezzle from the road

and bridge fund the total sum of P57,048.23.

The provincial voucher in these cases has several parts. In the upper part with the legend "ARTICLE OR

SERVICE" the nature of the obligation incurred is indicated. That part is supposed to be signed by two

officials of the provincial engineer's office and by the governor's representative.

The middle part of the voucher contains five numbered printed paragraphs.

Paragraph 1 is a certificate to be signed by the creditor. It is stated therein that the creditor vouches that

the expenses "were actually and necessarily incurred". In the instant cases paragraph 1 was not signed

presumably because it is not relevant to the purchase of materials for public works projects. Paragraph 2

is a certification that the expenses are correct and have been lawfully incurred. It is signed by the

provincial engineer. Paragraph 3 contains these words: "Approved for pre-audit and payment,

appropriations and funds being available therefore." This is signed by the provincial treasurer. Paragraph

4 is a certification which, as filed up in Exhibit K, Voucher No. 10724 dated February 28, 1969, certifying

that the voucher has been pre-audited and signed by the auditor. Paragraph 5 is a certification signed by

the provincial treasurer that the account mentioned in the provincial engineer's certification "was paid

in the amount and on the date shown below and is chargeable as shown in the summary hereof. " It may

be noted that the provincial treasurer signs two part of the voucher.

Issue:

Whether or not appellants are liable for the crimes of falsicification of public documents and six crimes

of malversation?

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Held:

Samson is convicted of six crimes of falsification of a public document and six crimes of malversation. In

lieu of the penalties imposed by the trial court, he is sentenced to the following penalties: For each of

the six falsification of the vouchers (Exh. K, O, P, Q, R and S), Samson is sentenced to an indeterminate

penalty of two (2) years of prison correccional minimum, as minimum, to four (4) years of prisioncorreccional medium, as maximum, and to pay a fine of three thousand pesos. For the malversation of

the sum of P16,727.52 covered by voucher No. 10724 (Exh. K), Samson is sentenced to an indeterminate

penalty of twelve (12) years of prision mayor maximum, as minimum, to seventeen (17) years of

reclusion temporal medium, as maximum; to pay a fine in the amount of P16,727.52, and to indemnify

the province of Pangasinan in the same amount (Criminal Case NO. 23349, L-33252). For the

malversation of the sum of P14,571.81 covered by voucher No. 11995 (Exh. O), Samson is sentenced to

an indeterminate penalty of twelve (12) years of prision mayor maximum, as minimum, to seventeen

(17) years of reclusion temporal medium, as maximum; to pay a fine in the sum of P14,571.81, and to

indemnify the province of Pangasinan in the same amount (Criminal Case No. 23351, L-33254). For the

malversation of the sum of P6,290.60 covered by voucher No. 11870 (Exh. Q), Samson is sentenced toan indertiminate penalty of nine (9) years of prision mayor medium, as minimum, to thirteen (13) years

of reclusion temporal minimum, as maximum; to pay a fine of P6,290.60, and to indemnify the province

of Pangasinan in the same amount (Criminal Case No. 23350, L-33253). For the malversation of the sum

of P9,769.64 covered by voucher No. 11871 (Exh. R), Samson is sentenced to an indeterminate penalty

of nine (9) years of prision mayor medium, as minimum, to thirteen (13) years of reclusion temporal

minimum, as maximum; to pay a fine of P9,769.64, and to indemnify the province of Pangasinan in the

same amount (Criminal Case No. 23350, L-33253). For the malversation of the sum of P5,187.28,

covered by voucher No. 11869 (Exh. P), Samson is sentenced to an indeterminate penalty of five (5)

years of prision correccional maximum, as minimum, to eight (8) of prision mayor minimum, as

maximum; to pay a fine of P5,187.28, and to indemnify the province of Pangasinan in the same amount(Criminal Case No. 23350, L-33253).

For the malversation of the sum of P4,501.38 covered by voucher no. 11872 (Exh. S), Samson is

sentenced to an indeterminate penalty of five (5) years of prision correccional maximum, as minimum,

to eight (8) years of prision mayor minimum, as maximum; to pay a fine of P4,501.38, and to indemnify

the province of Pangasinan in the same amount (Criminal Case No. 23350, L-33253). In the service of the

twelve penalties meted to Samson, the threefold limit provided for in article 70 of the Revised Penal

Code should be observed (People vs. Escares, 102 Phil. 677), meaning that the maximum penalty that he

should serve is three times the indeterminate sentence of twelve (12) years to seventeen (17) years, the

severest penalty imposed on him, or thirty-six (36) years to fifty-one (51) years (see People vs. Peas, 68Phil. 533). The maximum duration of his sentences should not exceed forty (40) years (Penultimate par.

of art. 70; People vs. Alisub, 69 Phil. 362; People vs. Concepcion, 59 Phil. 518, 68 Phil. 530 and 69 Phil.

58).

The estate of the late Licerio P. Sendaydiego is ordered to indemnify the province of Pangasinan in the

sum of P57,048.23. Samson and the said estate are solitarily liable for the said indemnity (Art. 110,

Revised Penal Code). Samson should pay one-half of the costs. SO ORDERED.

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AYTONA vs. CASTILLO

FACTS: On December 29, 1961, Carlos P. Garcia, who was still President that time, made last minute

appointments while the Commission on Appointments was not in session. Said last minute appointment

included Dominador R. Aytona, who was appointed as ad interim Governor of Central Bank. The latter

took oath on the same day.

At noon on December 30, 1961, President-elect Diosdado Macapagal assumed office. He issued

Administrative Order No. 2 on December 31, 1961 recalling, withdrawing and canceling all ad interim

appointments made by President Garcia after December 13, 1961, which was the date when Macapagal

was proclaimed President by the Congress. He then appointed Andres V. Castillo as ad interim Governor

of the Central Bank and the latter qualified immediately. On January 2, 1962, both exercised the powers

of their office .However, Aytona was prevented from holding office the following day and thus instituted

a quo warranto proceeding ,challenging Castillos right to exercise the powers of the Governor of the

Central Bank. Aytona claims that he was validly appointed and had qualified for the post, therefore

making Castillos appointment void. Castillo then contended that Aytonas appointment had already

been revoked by Administrative Order No. 2 issued by President Macapagal.

ISSUE: Whether President Diosdado Macapagal had power to issue the order of cancellation of the ad

interim appointments made by President Carlos P. Garcia even after the appointees had already

qualified.

RULING: Upon the ground of separation of powers, the court resolved that it must decline and refuse

jurisdiction in disregarding the Presidential Administrative Order No. 2, canceling such midnight or

last-minute appointments .Case dismissed

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Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. 77120 April 6, 1987

ARTURO QUIZO, petitioner,

vs.

The HON. SANDIGANBAYAN, represented by HON. FRANCIS E. GARCHITORENA, LUCIANO A. JOSON,

RAMON V. JABSON, respondents.

Mamerto P. Galledo for petitioner.

R E S O L U T I O N

FERNAN, J.:

In this petition for certiorari, petitioner Arturo Quizo assails the resolution of the respondent

Sandiganbayan in Criminal Case No. 9777 promulgated on September 23, 1986 which denied the motion

to dismiss filed by the Tanodbayan as well as the resolution of October 22, 1986 which denied the

motion for reconsideration thereto. Petitioner contends that said resolutions were rendered without or

in excess of jurisdiction and/or with grave abuse of discretion.

It appears that after an audit conducted by the Commission on Audit on September 13, 1983, petitioner,

the Money Order Teller of Cagayan de Oro Post Office, was found to have incurred a shortage in his cash

and other accounts of P17,421.74, as follows:

Vales granted to various employees but disallowed P16,720.00 Accommodated private checks 700.00

Actual cash shortage 1.74

P17,421.74

On the same day, petitioner reimbursed the amount of P406.18; three days thereafter, P10,515.56; and

on September 19, 1983, the balance of P6,500.00.

Notwithstanding full restitution, an information for malversation of public funds against petitioner was

filed by the Tanodbayan before the Sandiganbayan. On a motion for reinvestigation and/or

reconsideration, the Tanodbayan filed a motion to dismiss on the following grounds:

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1. No damage was inflicted on the government as there was full restitution of the malversed funds

within a reasonable time;

2. The accused never pocketed the money, the shortages, it is admitted, being 'vales' of his co-

employees. (Annex A, p. 14, Rollo).

On September 23, 1986, the Sandiganbayan denied the prosecutor's motion to dismiss. It ruled that

damage to the government is not an essential element of the crime of malversation and that restitution

of the malversed funds before the filing of a complaint is neither a defense that would exempt the

offender from criminal liability nor a valid ground for dismissal. A motion for reconsideration was filed

but it was denied on October 22, 1986. Hence this petition.

Petitioner questions the propriety and advisability of the Sandiganbayan's actuation in seeming to

substitute its judgment on matters within the discretion of the prosecution. Petitioner further argues

that there are sufficient and compelling reasons for the dismissal of the criminal case, namely:

1. There was no criminal intent, no malice or any animus lucrandi;

2. If there was negligence,the same was noti nexcusable;

3. There was full restitution made within a reasonable time; and

4. Similar cases were dismissed at the Sandiganbayan and Tanodbayan level on the ground of

restitution.

The petition is impressed with merit.

In the case of People vs. Pineda, 20 SCRA 748, the Court ruled:

A prosecuting attorney, by the nature of his office, is under no compulsion to file a particular criminal

information where he is not convinced that he has evidence to prop up the averments thereof, or that

the evidence at hand points to a different conclusion. This is not to discount the possibility of the

commission of abuses on the part of the prosecutor. But we must have to recognize that a prosecuting

attorney should not be unduly compelled to work against his conviction. In case of doubt, we should

give him the benefit thereof. A contrary rule may result in our courts being unnecessarily swamped with

unmeritorious case. Worse stilt a criminal suspect's right to due process the sporting idea of fair play

may be transgressed.

... The question of instituting a criminal charge is one addressed to the sound discretion of theinvestigating Fiscal. The information he lodges in court must have to be supported by facts brought

about by an inquiry made by him It stands to reason then to say that in a clash of views between the

judge who did not investigate and the fiscal who did or between the fiscal and the offended party or the

defendant, those of the Fiscal's should normally prevail ... (Emphasis supplied.)

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In Alberto vs. de la Cruz, 98 SCRA 406, reiterated in Bautista vs. City Fiscal of Dagupan 131 SCRA 132, the

Court further held:

It is the rule that a fiscal by the nature of his office, is under no compulsion to file a particular criminal

information where he is not convinced that he has evidence to support the allegrations thereof.

Although this power and prerogative of the FiscaL to determine whether or not the evidence at hand issufficient to form a reasonable belief that a person committed an offense, is not absolute and subject to

judicial review, it would be embarrassing for the prosecuting attorney to be compelled to prosecute a

case when he is in no position to do so, because in his opinion he does not have the necessary evidence

to secure a conviction, or he is not convinced of the merits of the case.

Against the foregoing and considering that after a reinvestigation conducted by a prosecutor, no less

than the Tanodbayan himself directed the dismissal of the case based on findings that "it is clear that

the accused never pocketed the money" and that "the shortage were vales of co-employees" (Annex

"D," p. 39, Rollo), the Court is inclined to sustain petitioner's contention that the Sandiganbayan gravely

abused its discretion when it refused to grant the motion to dismiss. It is not fair to compel the

prosecutor to secure the conviction of an accused on evidence which in his opinion, is insufficient and

weak to establish even a prima facie case.

Besides, the Court is convinced that there is no sufficient evidence to show a prima facie case against

petitioner.

Article 217 of the Revised Penal Code provides that the failure of a public officer to have duly

forthcoming any public funds or property with which he is chargeable, upon demand by any duly

authorized officer, shall be prima facie evidence that he has put such missing funds or property to

personal uses. Hence, an accountable public officer may be convicted of malversation even if there is no

direct evidence of misappropriation and the only evidence is that there is a shortage in his accountswhich he has not been able to explain satisfactorily (De Guzman vs. People, 119 SCRA 337). This is

because the law establishes a presumption that mere failure of an accountable officer to produce public

funds which have come into his hands on demand by an officer duly authorized to examine his accounts

is prima facie evidence of conversion. However, the presumption is merely prima facie and a rebuttable

one. The accountable officer may overcome the presumption by proof to the contrary. If he adduces

evidence showing that, in fact, he has not put said funds or property to personal use, then that

presumption is at an end and the prima facie case destroyed (US vs. Catolico, 18 Phil. 504).

In the case at bar, petitioner successfully overthrew the presumption of guilt. He satisfactorily proved

that not a single centavo of the missing funds was used by him for his own personal interest, a factconceded by the Tanodbayan 'the bulk of the reported shortage actually referred to the items

disallowed by the Audit Team representing cash advances extended to co-employees. In fact, evidence

disclosed that the itemized list of the cash advances (Annex "B " of Motion for Re-Investigation and/or

Reconsideration, p. 31, Rollo) was verified and found to be correct by an Auditing Examiner, Petitioner

explained that the granting of the cash advances was done in good faith, with no intent to gain and

borne out of goodwill considering that it was a practice tolerated in the office. Such being the case,

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negligence evidentiary of malice or intent to defraud the government cannot be imputed to him. Also to

be considered is the circumstance that the actual cash shortage was only P1.74 which, together with the

disallowed items, was fully restituted within a reasonable time from date of audit,

Significantly, in the recent case of Villacorta vs. People, G.R. No. 68268, November 12, 1986, the Court

acquitted the accused. the municipal treasurer of Pandan, Catanduanes. of the crime of malversation ofpublic funds on grounds that he did not put the missing funds to personal uses, that his having "allowed

others to freely participate of the chits/vouchers" was a practice which seemed to have been tolerated

even during the time of his predecessor and that there was no negligence approximating malice or fraud

because the wrong payments were made in good faith.

WHEREFORE, the writ of certiorari is granted and the resolutions of the respondent Sandiganbayan

dated September 23, 1986 and October 22, 1986 are SET ASIDE. Criminal Case No. 9777, entitled

"People of the Philippines vs. Arturo C. Quizo" is hereby DISMISSED. No costs.

SO ORDERED.

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Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. 94408 February 14, 1991

EMILIANO CIMAFRANCA, JR., petitioner,

vs.

SANDIGANBAYAN (Second Division) and PEOPLE OF THE PHILIPPINES, respondents.

Caballero, Calub, Aumentado & Associates Law Office for petitioner.

GANCAYCO, J.:p

The question addressed by this petition is whether or not an accountable public officer may be

criminally liable for malversation of public property when he fails to return or produce the same upon

demand, although after the filing of the information and during the trial he returned the property to the

government.

The facts as found by the respondent Sandiganbayan in its questioned decision dated June 26, 1990 are

as follows:

The following facts have been sufficiently established: Accused Emiliano Cimafranca, Jr. was the

Provincial Fisheries Inspector of the Province of Bohol from 1980 until his services were first terminated

on May 2, 1986. He was reappointed as Fishery Aide effective November 25, 1987 and again separated

from the service on March 15, 1988. (Record, pp. 52 & 54). As a Fisheries Inspector, he was issued on

July 12, 1985, a revolver (Smith and Wesson, Cal. .38, 4" barrel, U.S. make SN 748198), marked as Exhibit

K, valued at P350.00. On September 30, 1985, he was also issued a Briggs and Stratton engine, 10 HP

with Serial Number 02356, valued at P8,475.00. (Exhibit G).

On May 2, 1986, when his temporary appointment expired, accused was advised by the Provincial

Governor of Bohol to return his property accountabilities. On June 18, 1986, Eufronio M. Pizzaras,

Officer-In-Charge of the Office of the treasurer of Tagbilaran, Bohol, also wrote him a follow up letter to

return the revolver and engine. Although he received the letter, accused did not comply. (TSN., p. 12,July 20, 1989).

On July 25, 1986, Teresita M. Sanchez, Provincial Auditor of Bohol, issued Office Order No. 86-29

directing Atty. Toribio S. Quiwag, Legal Officer III, and Mrs. Maria C. Longjas Auditor I, to conduct a

property audit on ten government officials and employees whose names were mentioned therein.

Included in the list is the accused Emiliano Cimafranca, Jr. (Exhibit A). Pursuant to the office order, Mrs.

Longjas and Atty. Quiwag conducted a property audit on July 26, 1986. They found out that accused,

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although already separated from the service on May 2, 1986, had not yet settled his property

accountabilities, despite demands made upon him by the Officer-In-Charge of the City Treasurer's

Office. On July 28, 1986, Atty. Quiwag sent a demand letter to the Provincial Treasurer of Bohol, for the

production of the properties issued to the aforementioned government officials and employees. (Exhibit

C).

For failure of accused to have duly forthcoming the public properties of which he was accountable upon

demand by a duly authorized officer, he was charged of Malversation of Public Property, defined and

penalized under Article 217 of the Revised Penal Code. 1

Upon arraignment, petitioner pleaded not guilty to the information after which the trial proceeded, and

particularly on July 14, 1989, Mr. Abraham Campos, in-charge of the Record Section of Tagbilaran City,

received from the Provincial Treasurer, the revolver and engine which are the subject matter of this

prosecution which were returned by petitioner.

After the trial on the merits, the respondent court rendered a decision on June 26, 1990, convicting the

petitioner of the offense charged in this manner:

WHEREFORE, accused Emiliano Cimafranca, Jr., is hereby found GUILTY beyond reasonable doubt of the

crime of Malversation of Public Property defined and penalized under Article 217 of the Revised Penal

Code, and appreciating in his favor the mitigating circumstance of voluntary restitution or return of the

properties malversed, analogous to voluntary surrender, he is sentenced to an indeterminate penalty

ranging from six (6) years, and one (1) day of prision mayor, as minimum, to ten (10) years, and one (1)

day of prision mayor, as maximum; to pay a fine of P8,825.00, equivalent to the total value of the

properties embezzled; to suffer perpetual special disqualification; to indemnify the Philippine

Government in the amount of P8,475.00, representing the value of the Briggs and Stratton engine only,

and to pay the costs.

Upon finality of this decision, the Deputy Clerk of Court assigned to the Second Division of this Court is

ordered to return the Smith & Wesson .38 Caliber Revolver, with Serial No. 748198, involved in this

case, to the Provincial Treasurer of Bohol or his duly authorized representative, after proper

Identification and receipt.

SO ORDERED. 2

Hence, this petition for review on certiorari predicated on the following grounds:

I THE RESPONDENT SANDIGANBAYAN ERRED IN CONVICTING THE ACCUSED OF THE CRIME OFMALVERSATION OF PUBLIC PROPERTY UNDER ARTICLE 217 OF THE REVISED PENAL CODE.

II THE RESPONDENT SANDIGANBAYAN ERRED IN NOT HAVING GIVEN CREDENCE TO THE CREDIBILITY

OF THE ACCUSED.

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III THE RESPONDENT SANDIGANBAYAN ERRED IN NOT ABSOLVING THE ACCUSED. 3

The petition is devoid of merit.

The main thrust of the defense is that the public property allegedly malversed by petitioner was

returned by him during the trial and this entitles him to an acquittal. While he admitted having received

the engine and revolver for his use as provincial fisheries inspector while patrolling the high seas against

illegal fishing, he testified that after he finished patrolling he placed the engine at the back of the

convent but it was stolen so he was not able to return the same upon demand. After a long search he

finally found it at the side of the market but it was no longer usable.

Similarly, he alleged that the revolver fell from his waist into the sea while patrolling the high seas.

When he received a letter of demand to return said property on May 2, 1987, he hired sea divers to look

for the gun. He executed an affidavit of loss on July 6, 1987. 4 After two years of diligent search he found

the gun still in good condition. It did not become rusty as it stayed under the seawater and was not

exposed to the air. He and his son reblued it.

Under Article 217 of the Revised Penal Code the offense of malversation is defined and penalized as

follows:

ART. 217. Malversation of public funds or property. 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 toreclusion 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.

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The failure of a public officer to have duly forthcoming any public funds or property with which he is

chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put

such missing funds or property to personal uses. (As amended by Rep. Act No. 1060, approved June 12,

1954.)

The elements of the offense of malversation are

a) That the offender be a public officer;

b) That he had the custody or control of funds or property by reason of the duties of his office;

c) That those funds or property were public funds or property for which he was accountable;

d) And, that he appropriated, took, misappropriated or consented or, through abandonment or

negligence, permitted another person to take them.

Petitioner admits that the first three elements are present. He, however, contends that the fourth

element had not been established as in fact he returned the property during the trial.

The Court is not persuaded.

Under the last paragraph of Article 217 of the Revised Penal Code above reproduced, the failure of a

public officer to have duly forthcoming any public funds or property with which he is chargeable, upon

demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds

or property to personal uses. The burden is on the accused to overcome this presumption.

In the present case the petitioner failed to overturn this prima facie evidence of his guilt.

Firstly, when his temporary appointment in the government expired on May 2, 1986, he was advised bythe Provincial Governor of Bohol to return his property accountabilities but he failed to do so. On June

18, 1986, Mr. Pizarras of the Office of the Treasurer of Tagbilaran wrote a follow-up letter asking him to

return the revolver and engine, which he received and yet, he did not comply with the requirement or

reply to the letter.

Secondly, on July 28, 1986, Atty. Quiwag of the Provincial Auditor's Office sent a demand letter to the

Provincial Treasurer of Bohol to produce said missing property, 5 and the latter made demands on

petitioner to return the property but to no avail. In none of these instances did petitioner reveal the

alleged loss of the revolver and theft of the engine.

Thirdly, the version of petitioner as to why he was not able to immediately return the property, as

correctly observed by the respondent court, is difficult to believe. He failed to report the alleged loss of

government property to the proper authorities. While he claimed to have reported the loss of the

engine to the police, said matter was not reflected in the police blotter. He presented an affidavit of

P/Cpl. Crispin Tubayan confirming said reports 6 but petitioner did not present Tubayan as a witness as

the affidavit in itself is hearsay. And although petitioner also testified that he reported the loss of the

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revolver to the Provincial Governor, this fact was not even reflected in the affidavit of loss he executed.

Moreover, he did not ask nor did he present the Governor to testify in order to confirm his statement.

Fourthly, it took him years to recover the engine and gun, and this delay makes his tale incredible more

so as it is uncorroborated.

Since petitioner failed to overturn the prima facie evidence of guilt by his non-production of the

government property upon previous repeated demands, and as he produced it only much later, that is,

after several years, the only logical conclusion is that he actually misappropriated the property and/or

otherwise allowed other persons to take and appropriate the same. Worst still, when the engine was

returned, it was already scrap and the revolver was rusty and had to be reblued. The crime of

malversation had been consummated when the property were belatedly returned.

This Court has made the consistent pronouncement that the return of the funds malversed is not a

defense and will not be an exempting circumstance nor a ground for extinguishing the criminal liability

of the accused. 7 At best it can be a mitigating circumstance. 8

The same principle should apply when the subject matter of the malversation is public property.

However, when as in this case, it took the petitioner several years before he returned the government

property, such circumstance cannot be considered a special mitigating circumstance analogous to

voluntary surrender, as the trial court did credit to the petitioner. Said government property appear to

be under the control and possession of petitioner all the time. There was no reason why he could not

return the same promptly if not soonest to the government. The much delayed return of the property

must be a desperate act and afterthought of petitioner when he realized that all possible hope of

exoneration was lost during the trial.

Under Article 217 of the Revised Penal Code the penalty of prision mayor in its maximum period toreclusion temporal in its minimum period is imposed if the amount involved is more than P6,000.00 but

is less than P12,000.00. As there are no modifying circumstances attending the commission of the

offense and applying the Indeterminate Sentence Law, the penalty that should be imposed on petitioner

is imprisonment of six (6) years and one (1) day of prision mayor as minimum, as correctly imposed by

respondent court, to eleven (11) years and six (6) months of prision mayor as maximum.

The fine of P8,825.00 imposed is within the range prescribed by Article 217, which is the total value of

the property malversed, since the engine returned was no longer in its original good condition, but

scrap.

WHEREFORE, with the above modification as to the penalty, the judgment subject of the petition isAFFIRMED in all other respects, with costs against petitioner.

SO ORDERED.

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Republic of the Philippines

SUPREME COURT

Manila

SECOND DIVISION

G.R. No. 109991 May 22, 1995

ELIAS C. QUIBAL AND ANTONIO U. DENIEGA, petitioners,

vs.

THE HON. SANDIGANBAYAN (Second Division) and PEOPLE OF THE PHILIPPINES, respondents

PUNO, J.:

Petitioners ELIAS C. QUIBAL and ANTONIO U. DENIEGA, the mayor and treasurer, respectively, of the

municipality of Palapag, Northern Samar, and Eduardo C. Guevarra, a private individual, were charged

with violation of Section 3 (e) of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft

and Corrupt Practices Act.

The Information 1 against them reads:

That on or about February 16, 1988, or sometime prior or subsequent thereto, in Palapag, Northern

Samar, within the jurisdiction of this Honorable Court, the accused public officers, namely, ELIAS C.

QUIBAL, Municipal Mayor of Palapag, Northern Samar, and ANTONIO U. DENIEGA, then Municipal

Treasurer of Palapag, Northern Samar, while in the discharge of their public functions, through evident

bad faith and manifest partiality in conspiracy with EDUARDO C. GUEVARRA, a private contractor

representing Floters Construction, did then and there wilfully and unlawfully cause undue injury, by

effecting payment in the amount of P650,000.000 when the actual cost of the public market of Palapag,

Northern Samar, was only P301,754.65, thereby giving unto the said private contractor unwarranted

benefits to the damage and prejudice of the government in the total amount of P348,345.35.

Only accused Elias C. Quibal and Antonio U. Deniega were arrested, tried and convicted. Accused

Eduardo C. Guevarra remains at large.

The evidence on record established the following:

On November 27, 1987, the municipality of Palapag, Northern Samar, represented by its OIC vice-mayor

Teodoro C. Bello, entered into a contract 2 with the Floters Construction Company, represented by

accused Eduardo C. Guevarra, for the Construction of the municipal public market. The period for the

completion of the project was one hundred (100) days. The price was P652,562.60.

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From February 16, 1988 to April 12, 1988, accused Mayor Quibal and Municipal Treasurer Deniega,

issued four (4) PNB checks in favor of the contractor in the total amount of P650,000.00. However,

sometime in June 1988, after receipt of said payments, the contractor abandoned the project.

On August 31, 1988, a COA Special Audit Team composed of Provincial Auditor Marissa Bayona and

Engineers Bienvenido Bayani and Robert Bajar inspected the progress of the construction of the Palapagmunicipal market. 3 It discovered several irregularities. It found out that only about 36.24% of the

construction of the municipal market has been completed despite the lapse of the contract period of

100 days. The actual cost of the finished work on the project was only P301,746.65. Unfinished work on

the municipal market, as evaluated, cost P348,235.35. It was also established that the contractor had

already been paid P650,000.00 despite the non-completion of the building. The vouchers accompanying

said payments were not properly filled-up and the required supporting documents were not attached.

The disbursement vouchers (Exhibits "E" to "E-3") submitted by municipal treasurer Deniega to

Provincial Auditor Bayona were unsigned. Likewise, the payment to the contractor in the amount of

P340,000.00 was not accompanied by any Certificate of Acceptance issued by the COA. COA rules

require such certificate of acceptance if the disbursement involves more than P200, 000.00.

In a letter 4 dated January 26, 1989, Provincial Auditor Marissa Bayona submitted an inspection report

to the COA Regional Director recommending that appropriate legal action be taken against the

municipal mayor, treasurer and the contractor in connection with the construction of the Palapag public

market. In a letter 5 dated April 7, 1989, the Ombudsman informed Mayor Quibal of the charges filed

against him by the COA. On May 12, 1989, Mayor Quibal requested the COA Regional Director for a re-

audit of the cost valuation of the said construction project. 6 His request was denied.

Sometime in November 1989, petitioners still continued the construction of the municipal market using

the stockpile of materials previously purchased by the contractor and the contractor's retention fee.

They completed the construction at the end of December 1989. The municipal government then started

leasing the market stalls in January 1990.

The two (2) accused public officers testified in their defense. Accused Deniega, municipal treasurer,

admitted that he disbursed the total amount of P650,000.00 to the contractor, viz:

a) P340,000.00, released on February 16, 1988, based on the voucher (Exhibit "F-3") presented to

him by the contractor, which was duly approved by the mayor.

b) P60,000.00, released on February 26, 1988; based on the voucher presented to him by the

contractor (Exh- "F-2");

c) P200,000.00, released on March 14, 1988, also based on a voucher (Exh. "F"); and

d) P50,000.00, released on April 22, 1988 (Exh. "F-1"), also based on a similar voucher.

But he claimed that he submitted complete and signed vouchers and the required supporting

documents to the Office of the Provincial Auditor. He insisted that the unsigned vouchers presented in

court by the prosecution were not the vouchers which supported the payments they made.

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For his part, accused mayor Quibal explained that he paid the contractor more than his accomplished

work to enable the latter to immediately purchase construction materials which were then selling at a

low price. He further maintained that the audit team should have included the value of these

construction materials (still unused at the time of audit) in its evaluation of the project. He urged that

these unused materials were worth approximately P348,235.35, which would justify his payments to the

contractor in the total amount of P650,000.00.

After trial on the merits, the Sandiganbayan (Second Division) promulgated, a Decision 7 finding accused

public officials guilty beyond reasonable doubt as co-principals of the crime charged. The dispositive

portion reads:

WHEREFORE, premises considered, the Court finds accused Elias Quibal y Capati and Antonio Deniega y

Ubas GUILTY beyond reasonable doubt as co-principals for violation of Section 3, paragraph (e) of

Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, in

relation to Section 9 (a) thereof, and applying Act No. 4103, as amended, otherwise known as the

Indeterminate Sentence Law, the Court imposes upon each accused the penalties of imprisonment

ranging from SIX (6) YEARS and ONE (1) MONTH to TEN (10) YEARS and ONE (1) DAY; perpetual

disqualification from public office; and, to indemnify the Municipality of Palapag, Northern Samar,

jointly and severally, the amount of P348,345.35 without subsidiary imprisonment in case of insolvency.

With costs.

Considering that their co-accused Eduardo C. Guevarra has not yet been brought within the jurisdiction

of this Court up to this date, let this case be archived as against him without prejudice to its revival in

the event of his arrest or voluntary submission to the jurisdiction of this Court.

SO ORDERED. 8

The two (2) accused moved for a reconsideration. It was denied. Hence this petition.

Petitioners contend that:

I

RESPONDENT SANDIGANBAYAN (SECOND DIVISION) ERRED IN NOT UPHOLDING THE CONSTITUTIONAL

RIGHT OF PETITIONERS TO "DUE PROCESS" BY NOT ALLOWING RE-EXAMINATION AND RE-AUDIT OF THE

PROJECT WHICH HAS ALREADY BEEN COMPLETED AND UTILIZED FOR PUBLIC USE.

II

RESPONDENT SANDIGANBAYAN (SECOND DIVISION) ERRED IN NOT RESOLVING THAT THE GUILT OF THE

PETITIONERS HAS NOT BEEN PROVEN BEYOND REASONABLE DOUBT BECAUSE

a) NO UNDUE INJURY HAS BEEN CAUSED TO THE GOVERNMENT WITH THE FULL COMPLETION OF

THE PROJECT.

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b) PETITIONERS DID NOT ACT WITH MANIFEST PARTIALITY, EVIDENT BAD FAITH AND GROSS

INEXCUSABLE NEGLIGENCE.

We affirm petitioners' conviction.

Petitioners were charged with a violation of Section 3 (e) of R.A. 3019, viz:

Sec. 3. Corrupt practices by public officers. In addition to acts or omissions of public officers already

penalized by existing law, the following shall constitute corrupt practice of any public officer and are

hereby declared to be unlawful:

xxx xxx xxx

(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 of government corporations charged with the grant of

licenses or permits or other concessions.

Violation of Section 3 (e) of R.A. 3019 requires proof of the following facts, viz:

1. The accused is a public officer discharging administrative or official functions or private persons

charged in conspiracy with them;

2. The public officer committed the prohibited act during the performance of his official duty or in

relation to his public position

3. The public officer acted with manifest partiality, evident bad faith or gross, inexcusable

negligence; and

4. His action caused undue injury to the Government or any private party, or gave any party any

unwarranted benefit, advantage or preference to such parties. 9

Petitioners insist that their guilt has not been proved beyond reasonable doubt for they did not act with

manifest partiality, evident bad faith or gross, inexcusable negligence nor did they cause any injury or

damage to the municipal government for the construction of the municipal market was eventually

completed.

We reject these contentions.

The construction of the municipal market should have been finished on March 7, 1988. At the time of

the audit on August 31, 1988, however, only 36.24% of the construction of the market has been

completed .Yet, out of the contract price of P652,562.60, petitioners already raid the contractor a total

of P650,000.00. In so doing, petitioners disregarded the provision in the contract that payment should

be based on the percentage of work accomplishment. Moreover, the contract provided that in case of

delay in the completion of the project, the contractor shall be liable for liquidated damages at the rate

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of 1/10 of 1% of the contract price per day of delay. 10 Petitioners did not impose this provision against

the contractor. By their acts, petitioners clearly acted with manifest partiality and evident bad faith

relative to the construction of the municipal market.

Petitioners' acts and omissions are, to say the least, grossly negligent. Gross negligence is the pursuit of

a course of conduct which would naturally and reasonably result in injury. It is an utter disregard of orconscious indifference to consequences. 11 In cases involving public officials, there is gross negligence

when a breach of duty is flagrant and palpable. 12

In the case at bench, petitioners' acts and omissions demonstrated an utter lack of care in enforcing the

contract for the construction of the public market and a reckless disregard of the COA rules and

regulations regarding disbursement of municipal funds. Petitioners contend that they released

P650,000.00 of the contract price to enable the contractor to take advantage of the low cost of

construction materials prevailing at that time. Plainly, petitioners' act violates the provision of the

contract requiring that payment shall be made on the basis of the percentage of completion of the

project. Moreover, as correctly pointed out by the Sandiganbayan:

. . . The escalation of prices of construction materials which allegedly prompted Quibal to pay the

contractor prematurely is not a justification that would absolve the accused public officers from criminal

liability. The parties could have included an escalation clause in the contract. . . . Moreover, there is a

law which authorizes the adjustment of contract price (R. A. 5979, as amended by PD No. 454).

xxx xxx xxx

Petitioners also insist that no undue injury or damage or caused to the municipal government

considering the later completion of the public market.

We cannot share this myopic view. The construction of the municipal market was completed only at the

end of December 1989 when it should have been finished by March 7, 1988. This unnecessary delay of

almost two (2) years caused considerable monetary loss to the municipal government in the form of

monthly rentals. The least that petitioners should have done was to enforce the penalty clause of the

contract (providing for payment of liquidated damages in case of breach) when the contractor failed to

meet his deadline on March 7, 1988. Instead of doing so, petitioners even made two (2) additional

payments to the contractor (on March 14 and April 22, 1988) in the total sum of P250,000.00. Thus, it

cannot be the successfully argued that the acts and omissions of petitioners did not cause damage injury

to the municipal government.

Finally, to bolster their claim of denial of due process, petitioners cite the case of Tinga v. People of thePhilippines. 13 Petitioners' reliance on the Tinga case is misplaced. In said case, we ruled that Tinga was

denied due process when the Commission on Audit refused to conduct a re-evaluation of the

accountabilities of Tinga. The ruling was based on the Court's finding that COA's evaluation of Tinga's

accountabilities was replete with errors, thus:

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The Sandiganbayan Decision is replete with findings of errors in the audit made of petitioner's

accountability. Thus, it said: (a) "We are not prepared to repeat the same mistake as the audit team and

prefer to credit Catalino Y. Tinga for said sum of P12,654.80 deductible from his alleged shortage" . . . ;

(b) the claim of the defense that Tinga was a victim of robbery is fully supported . . . resulting in a total

loss of P10,708.14 . . . . The COA auditing team ought to have credited the accused in this amount in his

total accountability for the accused never pocketed to his benefit this amount lost . . . ; (c) Court records

indubitably attest to the fact that Laurencio R. Masong, collection clerk of the Municipal Treasurer's

office of Bogo, Cebu, failed to turn over to the accused collections in the total sum of P7,398.30 in

October 1976, for which reason said employee was charged and convicted of the crime of Malversation

of Public Funds . . . . Why then should the COA auditors include the said sum in the accountability of

Tinga? . . . ; (d) "We find it relevant to observe that a careful examination of Exh. "L-1" shows that the

entry for withdrawal of voucher no. . . . has two circles with a cross inside before and after the entry,

indicating a cancellation or mistake thereat . . . . Thus, the sum of P30,000 appears to be honestly

disputed, which also served as basis for the accused to insist on a review or re-audit" . . . ; (e) "Such

conclusion of the COA arose from many errors committed during the audit examination. . . .

xxx xxx xxx

By the denial of the re-audit, petitioner was, as claimed by him, not given the right to be fully heard

before the charge was filed against him at a time when the records were still available and past

transactions still fresh in the memory of all concerned. He was given the chance to defend before the

Sandiganbayan yes, but as said Court itself observed "Tinga continued to pursue his quest for a re-audit

in his honest belief that he had not malversed any government funds. In the process, many but not all

disbursement vouchers were located in the office of the Municipal Treasurer of Bogo, Cebu, . . . ."

Perhaps, if he had been re-audited and his accountability reviewed, a different result may have been

produced.

Petitioners also claim that considering the value of the unused stockpile of construction materials and

supplies, a re-audit would prove that the payment they made was justified and that the actual cost of

the project at the time of the initial inspection is indeed P650,000.00. We hold that the suggested re-

audit would not exonerate the petitioners. The re-audit cannot blur the fact that undue damage has

already been caused to the municipal government in view of the delay in the construction of the

municipal market and the failure of the petitioners to enforce the penalty clause in the construction

contract.

IN VIEW WHEREOF, the appealed Decision is hereby AFFIRMED in toto. Costs against petitioners.

SO ORDERED.

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