41.1) DEFINITION OF TECHNICAL MALVERSATION. Art. 220. Illegal use of public funds or property.

Any public officer who shall apply any public fund or property under his administration to any public use other than that for which such fund or property were appropriated by law or ordinance shall suffer the penalty of prision correccional in its minimum period or a fine ranging from one-half to the total of the sum misapplied, if by reason of such misapplication, any damage or embarrassment shall have resulted to the public service. In either case, the offender shall also suffer the penalty of temporary special disqualification. This crime is known as technical malversation because the fund or property is already earmarked or appropriated for a certain public purpose.

41.2) DISTINCTION OF MALVERSATION FROM TECHNICAL MALVERSATION 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: . . .

The essential elements of this crime are: (a)the offender is a public officer;

The difference of this crime with the crime of malversation, the offender does not derive personal gain but merely devoted the funds to some other public use

(b) by reason of his duties he is accountable for public funds and property; and (c) he appropriates, takes, or misappropriates, or permits other persons to take such public funds or property, or otherwise is guilty of misappropriation or

Absence of damage is a mitigating circumstance

malversation of such funds or property.

On the other hand, Article 220 of the Revised Penal Code, for which the petitioner was convicted, reads: Art. 220.Illegal use of public funds or property. Any public officer who shall apply any public fund or property under his administration to any public use other than that for which such fund or property were appropriated by law or ordinance shall suffer the penalty of prision correccional in its minimum period or a fine ranging from one-half to the total of the sum misapplied, if by reason of such misapplication, any damage or embarrassment shall have resulted to the public service. In either case, the offender shall also suffer the penalty of temporary special disqualification.

The essential elements of this crime, more commonly known as technical malversation, are:

42.) IN MALVERSATION OF PUBLIC FUNDS, THE OFFENDERS RETURN OF THE AMOUNT MALVERSED HAS WHAT EFFECT? the petitioner was given sufficient time by the COA to comment or respond to its
findings. She received on November 13, 2000 a demand letter from COA but failed to comply with the said directive. Instead, on December 4, 2000 and January 12, 2001, she transmitted to the COA a total of 10 deposit slips showing that the total amount of P368,049.42 was credited to the account of the Municipality of Claveria. This was a clear case of restitution of funds. As held in several cases, restitution of funds is a mere mitigating

(a)the offender is an accountable public officer; (b) he applies public funds or property under his administration to some public use; and (c) the public use for which the public funds or property were applied is different from the purpose for which they were originally appropriated by law ordinance.

Technical malversation is not included in the crime of malversation. A comparison of the two articles reveals that their elements are entirely distinct and different from the other. In malversation of public funds, the offender misappropriates public funds for his own personal use or allows any other person to take such public funds for the latter's personal use. In technical malversation, the public officer applies public funds under his administration not for his or another's personal use, but to a public use other than that for which the fund was appropriated by law or ordinance.

circumstance. It does not obliterate the criminal liability of the accused for malversation of public funds. (Guzman vs Gonzales, 2010)
(2011 BAR) (19) In malversation of public funds, the offenders return of the amount malversed has the following effect (A) It is exculpatory. (B) It is inculpatory, an admission of the commission of the crime. (C) The imposable penalty will depend on what was not returned.

Technical malversation is, therefore, not included in nor does it necessarily include the crime of malversation of public funds charged in the information. (Parungao vs SB)

(D) It is mitigating.

For the crime of malversation, the failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand

If public funds were not yet appropriated by law or ordinance, and this was applied to a public purpose by the custodian thereof, the crime is plain and simple malversation, not technical malversation. If the funds had been appropriated for a particular public purpose, but the same was applied to private purpose, the crime committed is simple malversation only.

by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use.

Hence, once a public officer fails to return the funds or property, there is already a prima facie evidence that he has misappropriated it for his personal use. The burden of proof, therefore, shifts to him to prove that that is not the case upon such failure.

43.) MAY THE CRIME OF MALVERSATION BE COMMITTED BY A PRIVATE INDIVIDUAL?

44.) MAY PRIVATE PROPERTY BE THE SUBJECT MATTER OF THE CRIME OF MALVERSATION?

A private person may also commit malversation under the following situations:

Private properties: a). If held in trust by a public office i.e. he has the duty to account of the property, often referred to as Trust Funds or Trust Properties (i). Money deposited by a party in court as cash bail bonds or redemption price

(1)Conspiracy with a public officer in committing malversation;

(2)When he has become an accomplice or accessory to a public officer who commits malversation;

(ii). Private property deposited in court provided they have not been marked yet as evidence; or when they are ordered o be returned to the owner as evidence (iii). Property under attachment

(3)When the private person is made the custodian in whatever capacity of public funds or property, whether belonging to national or local government, and he misappropriates the same;

(iv). Proceeds of a sweepstake ticket entrusted to a sales agent (v). Articles the possession of which is prohibited, except for dangerous drugs, or the effects or instruments of a crime in the possession of a policeman

(4) When he is constituted as the depositary or administrator of funds or property seized or attached by public authority even though said funds or property belong to a private individual.

b). Property in custody of a public office for a public purpose i.e private properties impressed with public character (i) Example: The sheriff who conducted an execution sale spent part of the money realized from the sale instead of turning it over to the plaintiff. He is liable for malversation because the proceeds are impressed with the character of public funds. (ii). Example: Blood kept by the Phil. National Red Cross

c). Private property considered as public by reason of the (i). Principle of Co-mingling in that all funds commingled with public funds or found in public vaults, are presumed to be public funds/property and (ii) The Principle of Accretion

d). Private properties which were confiscated or seized even if deposited with a private person

MALVERSATION CASES

Ilogon vs. Sandiganbayan

Labatagos vs. Sandiganbayan

Vales case. The fact that petitioner did not personally use the missing funds is not

Case of the pregnant cashier and collecting officer who filed for an

a valid defense and will not exculpate him from his criminal liability. And as aptly found by respondent Sandiganbayan, the fact the immediate superiors of the accused have acquiesced to the practice of giving out case advances for convenience did not legalize the disbursements. Azarcon vs. Sandiganbayan

LOA but still went to the office to collect tuition fees and other fees for the uniform of the basketball team of the school. Malversation consists not inly in misappropriation or converting public funds or property to ones personal use but also knowingly allowing others to make use or of misappropriate them.

Estepa vs. Sandiganbayan

Case where Azarcon was requested by the Director of the BIR to

distraint the goods, chattels or other props of Ancla bec a delinquent Paymaster case. In crime of malversation, all that is necessary for conviction is proof taxpayer. Although sec 206 of the NIRC authorizes the BIR to effect a

that accountable officer had received the public funds and that he did not have them in his possession when demand therefore was made and he could not satisfactorily explain his failure so to account. An accountable officer may be convicted for malversation even if

constructive distraint by requiring any person to preserve distrained prop there is no provision in the NIRC constituting such person a public officer by reason of such requirement. The BIRs power authorizing a private indiv to act as depositary cannot be stretched to include the power to appoint him as a public officer. Consideration of ART. 222 private indiv as public officer. SC ruled that

there is not direct evidence of personal misappropriation where he has not been able to explain satisfactorily the absence of the funds involved. Under 217 there is prima facie evidence of malverdation where the

a private indiv who has in his charge any of the public funds or prop enumerated and commits any of the acts defined should likewise be penelized with the same penalty meted to erring public officers. Nowhere in the said provision is it expressed or implied that a private indiv be deemed a public officer. Azarcon and Ancla, his co-accused, are both private indivs.

accountable public officer fails to have duly forthcoming any public funds with which he is chargeable upon demand by duly authorized officer.