[G.R. No. 148862. August 11, 2005] RUBIN TAD-Y y BABOR, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION
CALLEJO, SR., J.:

This is a petition for review of the Decision [1] of the Court of Appeals (CA) in CA-G.R. CR No. 24162 affirming, on appeal, the
Decision[2] of the Regional Trial Court (RTC) of Bacolod City, Branch 49, in People v. Rubin Tad-y, et al., Criminal Case No. 98-19401.
The RTC ruling had affirmed the decision of the Municipal Trial Court in Cities (MTCC) in Criminal Case No. 57216 finding the petitioner
guilty of direct bribery.

The Antecedents

Engineer Rubin Tad-y, Structural Analyst and Engineer Nestor Velez, Building Inspector, both of the Office of the City Engineer
(OCE), Bacolod City, were charged with direct bribery under Article 210 of the Revised Penal Code in an Information filed on July 26,
1995 with the MTCC of Bacolod City, docketed as Criminal Case No. 57216. The accusatory portion of the Information for direct bribery
reads:

That on or about the 24th day of July 1995, in the City of Bacolod, Philippines and within the jurisdiction of this Honorable Court, the
herein accused, public officers, being then engineers at the City Engineers Office, Bacolod City, with corrupt intent and motivated with
pecuniary interest for themselves, did, then and there willfully, unlawfully and feloniously receive and accept marked money in the
amount of Four Thousand (P4,000.00) Pesos from Julio Encabo, electrical contractor and duly-authorized representative of Mildred
Wong, offended party and owner of Atrium Building located at Gonzaga Street, Bacolod City, in an entrapment operation conducted
by the PNP Criminal Investigation Service Command at Andres Bakeshop, Bacolod City, which amount was earlier solicited by said
accused from the offended party in exchange for the signing/approval of permit for building occupancy of the building owned by the
offended party, the signing/approval of said building permit is in connection with the performance of the official duties of said accused
as engineers in the Office of the City Engineer, Bacolod City, in violation of the aforementioned law.

Acts contrary to law.[3]

Velez and Tad-y were also charged with violation of Section 3(c) of Republic Act No. 3019 [4] in an Information filed with the RTC,
docketed as Criminal Case No. 17186. This case was raffled to Branch 44 of the RTC of Bacolod City.

The Case for the People[5]

The prosecution presented Julio Encabo, a licensed master electrician and electrical contractor, who testified that Mildred Wong
contracted his services for the construction of her 6-storey Atrium building along Gonzaga Street, in front of the Central Market in
Bacolod City.[6] On February 16, 1994, the Office of the City Engineer/Building Official issued Building Permit No. 0694509798[7] for the
construction of the building. The construction of the building was finished by April 25, 1995. [8]
Between 1:30 and 2:00 p.m. of even date, Encabo arrived at the OCE to arrange the conduct of final building inspections, and,
thereafter, the signing of the corresponding certificates. Rene Cornel, Jose Sotecinal, Ephraim Hechanova, Jose Mari Sales, Mateo
Tuvida and Rubin Tad-y, were the OCE officers-in-charge of the various aspects[9] of the building construction. If all went well, the
Building Official would then sign the certificate of occupancy, conformably with the provisions of the National Building Code
(Presidential Decree No. 1096).
Encabo had the certificates of final inspection and occupancy form typed by an OCE secretary. However, Tad-y,
Encabos compadre, approached the latter and dissuaded him from processing the certificates of final inspection and occupancy on
the building since he (Tad-y) was the one responsible for it; also, Mildred Wong still had an unpaid balance of P4,000.00 for his services.
When Encabo told Tad-y that collecting the amount from Wong would be problematic, Tad-y replied, [Its] up [to] you.
Shortly thereafter, some of the officers at the OCE, including Tad-y and Tuvida, conducted their final inspection of the building.
During the first week of May 1995, Encabo and Tad-y had an altercation and in his anger, Tad-y squeezed Encabos neck in the presence
of the latters wife.[10] Thus, the relations between Tad-y and Encabo became strained.
In the meantime, other officers of the OCE made their respective final inspections during the months of May to June 1995, and
signed the respective certificates of final inspection for the building. Tad-y did not make his final inspection, and refused to do so
unless the money he had demanded was given to him.[11] Encabo even sought the aid of the City Mayor but did not tell the latter that
Tad-y was demanding money because he did not want to place the latter in a bad light.
 Nonetheless, on July 6, 1995, Encabo reported the matter to the Criminal Investigation Section (CIS) of the Philippine National
Police (PNP) in Bacolod City, and signed a complaint sheet[12] against Tad-y for extortion. Police officer Alexander Muoz was then
ordered to conduct an investigation on the complaint.
Muoz decided to conduct entrapment operations against Tad-y. He asked Encabo to procure P4,000.00, consisting of forty (40)
pieces of P100.00 bills for the purpose.[13] Encabo complied. Muoz listed the serial numbers of the bills and placed his initials AM on
the right lower corner of each bill.[14] The PNP Crime Laboratory in Bacolod City applied ultraviolet powder on the bills.[15] The money
was placed in a white envelope,[16] and the envelope was turned over to Encabo for the entrapment.[17] The police officers and Encabo
had agreed that the police officers would position themselves within the vicinity of the Andres Bakeshop, and after giving the envelope
to Tad-y, Encabo would place his eyeglasses in front of his shirt collar to indicate that Tad-y had already received the money.[18]
After two aborted attempts,[19] Encabo informed Muoz by telephone that he and Tad-y would inspect the building at about 3:00
p.m. on July 24, 1995, and that Tad-y would sign the certificate of final inspection afterwards.[20] Police officers Eriberto Castaeda and
Muoz, along with civilian agents, proceeded to Gonzaga Street and positioned themselves as planned. [21]
Encabo and Tad-y, accompanied by OCE building inspector Engr. Nestor Velez, arrived at the building at about 5:00 p.m. on July
24, 1995. Encabo brought with him the envelope[22]containing the forty P100.00 bills and the certificate of final inspection bearing the
signatures of all the other OCE officers concerned, which Tad-y was to sign after the inspection of the building. Tad-y was then wearing
his orange OCE bowling team t-shirt. Encabo and Tad-y inspected the building together for about ten to twenty minutes. Velez, on his
own, made a separate inspection of the building. After the inspection, Encabo, Tad-y and Velez agreed to have a snack and proceeded
to the Andres Bakeshop at the ground floor of the Atrium Building along Gonzaga Street. [23] Velez and Tad-y walked side by side while
Encabo followed.[24] By then, Muoz, Castaeda and the other police officers were already in the vicinity to await Encabos signal.
Inside the bakeshop, Encabo brought out the certificate of final inspection, which Tad-y forthwith signed.[25] Encabo then gave
the envelope containing the forty P100.00 bills to Tad-y. The latter asked Encabo, What is it for? Encabo replied that it was the money
Tad-y had been waiting for.[26] Tad-y opened the envelope and saw its contents.[27] He asked Encabo if it was dangerous for him to
receive the envelope, and the latter answered that it was not.[28] Instead of putting the envelope in his pocket, Tad-y handed the same
to Velez under the table. Velez asked Tad-y what it was, and Tad-y told Velez to just keep it.[29] Thereafter, Tad-y and Velez, followed
by Encabo, exited from the bakeshop. Encabo then removed his eyeglasses and placed it on his shirt collar, the signal that Tad-y had
received the money.[30] The police officers then accosted Velez and Tad-y, and asked the latter where the white envelope was. Tad-y
denied that he received the envelope. Encabo told the police officers that Velez had the envelope.[31] When asked where the envelope
was, Velez brought it out from the right pocket of his pants.[32] Muoz told Velez to open the envelope and inspected its contents. Velez
did as he was told, and saw that the envelope contained P100.00 bills.[33] Tad-y and Velez were arrested and brought to the CIS
Headquarters, PNP Crime Laboratory.[34] Tad-ys shirt was turned over by the accosting officers. Castaeda also turned over to the PNP
Crime Laboratory the white envelope and its contents, with a request [35] for the PNP Crime Laboratory to test Velez and Tad-y for
ultraviolet powder and the latters shirt to be tested.[36]
Forensic Chemist Rea Villavicencio conducted the examination and prepared an Initial Laboratory Report, [37] stating that Rubin
B. Tad-y was positive for the presence of yellow ultraviolet powder on his right arm. Villavicencio, likewise, prepared a
sketch[38] depicting the body of Tad-y, and showing that his right forearm was positive for ultraviolet powder.
On cross-examination, Encabo admitted that Velez was not aware of everything. [39]
Edgar Occea, the Chief of the Inspection Division, later affixed his signature on the certificate of final inspection bearing Tad-ys
signature.[40] The City Building Official approved and issued the certificate of occupancy on July 27, 1995.[41]

The Case for the Accused Tad-y

Accused Tad-y denied demanding and receiving P4,000.00 from Encabo in consideration for the conduct of the building
inspection, and his signature on the certificate of inspection and the certificate of occupancy. He insists that under P.D. No. 1096, he
is not authorized to sign and issue a certificate of occupancy. He testified that in the afternoon of April 25, 1995, Encabo arrived at the
OCE requesting that the appropriate officials inspect the 6-storey Atrium building preparatory to the issuance of a certificate of final
inspection.[42] The next day, he, Tuvida, Tordesillas, Baja and Danoy conducted the building inspection. [43] They discovered that only
four floors were completed.[44] Encabo agreed to inspect the building at 3:00 p.m. of July 24, 1995, which, at Encabos request, was
reset to 4:30 p.m.[45] He and Engr. Velez conducted the inspection of the building on that day and found some defects in the
construction of the building.
After the inspection, Tad-y left Velez and Encabo behind as he was going to a bowling tournament, but, as he was crossing
Gonzaga Street, Velez and Encabo called him and invited him to join them for a snack at Andres Bakeshop. [46] He agreed because he
was hungry. He and Encabo were seated beside each other at the table in the bakeshop, while Velez was seated at the opposite
side.[47] While taking their snacks, Encabo brought out the certificate of final inspection bearing the signatures of the other officers of
the OCE who had inspected the building. Tad-y affixed his signature above his typewritten name with the notation see back page for
structural requisites at the dorsal portion of the document. Appearing at the dorsal portion of the certificate is Tad-ys handwritten
notation: Please Post the Allowable Load on [conspicuous] places especially [in the] area to be used as storage. [48] Before then, he
inquired from Encabo where the other requisite certificates of final inspection, plumbing, Fire Safety Inspection and logbook were,
and Encabo replied that he brought the requisite certificates with him gesturing to his portfolio. Encabo assured him that all the
requirements were in his portfolio.[49] With Encabos assurance, he then affixed his signature in the certificate of final inspection. [50]
Momentarily, Encabo told him that he had another document, and forthwith handed a white envelope to him. Believing that the
envelope contained the requisite certificate of final inspection signed by the other officers in the OCE, he received the envelope and,
without opening it, immediately handed it over to Velez who would examine its contents. He then left the bakeshop with Velez ahead
of him, followed by Encabo. He was crossing Gonzaga Street on his way to the bowling tournament when he was arrested by
policemen, who asked him where the white envelope he had earlier received from Encabo was. He told them that the envelope was
with Velez.[51]
Tad-y then saw Velez being held by a policeman, and that the envelope was already opened. A policeman forced Velez to go near
him. Another policeman forced him (Tad-y) to touch the envelope, but he parried the arm of the policeman with his right forearm and
refused to touch it.[52] They were then brought to the PNP headquarters where they were tested for ultraviolet powder.
Encabo filed a complaint against him because on four (4) prior occasions, he refused to sign the certificate of final inspection of
a house owned by a certain Nelson Seores, as well as the application for a building permit of Joey Yao, unless the latter paid a 100%
surcharge for deficiencies.[53] Seores and Yao were the principals of Encabo. In the evening of April 25, 1995, after he, Tuvida, Baja and
Tordesillas had their initial inspections of the building, they had dinner at the Tasty Treat. When he was about to pay the bill for their
food and drinks, Encabo insisted that he would pay the said bill. This infuriated him, and he squeezed Encabos chin with his hand.[54]
Jimmy Gonzales, a newspaper vendor, corroborated the testimony of the accused that someone forced Velez to hand over the
opened envelope to Tad-y,[55] but that Tad-y parried the attempt and refused to receive the envelope. [56]
Tad-y marked and offered in evidence the transcript of stenographic notes[57] taken during the trial of September 25, 1995 in
Criminal Case No. 17186.

The Case For the Accused Nestor Velez

Nestor Velez denied the charge. He corroborated the testimony of Tad-y and declared that he was appointed as building inspector
of the OCE only on March 16, 1995.[58] When he and Tad-y inspected the building in the afternoon of July 24, 1995, they did so
separately. After the inspection, Tad-y told him and Encabo that he was going ahead because he was going to play bowling. [59] When
Encabo invited him and Tad-y for a snack, Tad-y reluctantly agreed.[60]
Momentarily, Encabo brought out the certificate of final inspection and handed it to Tad-y for the latters signature. However,
Tad-y told Encabo that he would note the deficiencies of the building. Tad-y then signed the certificate after being assured by Encabo
that he had all the other certificates. Tad-y gave Velez the envelope and told him to keep it because he was going to a bowling
game.[61] Velez received the envelope and put it inside the right pocket of his pants, thinking that it contained the requisite final safety
inspection certificate and other certificates.[62]
On his way from the bakeshop, he and Tad-y were arrested by policemen. He opened the white envelope as the policemen
ordered, and saw money inside. He was forced to approach Tad-y, and another policeman forced the latter to touch the money
contained in the envelope. Tad-y resisted.
Edgar Occea testified that he signed the original and duplicate copies of the certificate of final inspection with the requisite
certificates of the other officers appended thereto. The City Engineer/City Building Official signed the Certificate of Occupancy on July
27, 1995. The original copy of the certificate of final inspection and occupancy was then released to Wong, while the duplicate was
retained by the OCE.[63]
Mateo Tuvida testified that he was the engineer in charge of the Mechanical Section of the OCE of Bacolod City since February
1975.[64] On April 25, 1995, he, Baja, Tad-y, Cornel and Yolando Ilog inspected the building at the Gonzaga side of the street and found
that it was already complete but that the structure along Cuadra Street was still incomplete. He found the mechanical aspect of the
building completed when he inspected it in the first week of June 1995. [65] He then affixed his signature on the certificate of final
inspection.[66]
 Venancio Baja testified that he had been in charge of the Electrical Division of the OCE since 1990. He was the assistant of Jose
Sotecinal, the Chief Electrical Engineer. He inspected the Atrium building on April 25, 1995 and found it incomplete. He again inspected
the building and found it in accord with the plans. He then signed the certificate of final inspection only in the first week of June
1995.[67]
On September 28, 1998, the MTC rendered judgment convicting Tad-y of direct bribery defined and penalized under Article 210
of the Revised Penal Code. Velez was acquitted of the charges. The fallo of the decision reads:

WHEREFORE, judgment is hereby rendered as follows:

1. Accused Engineer Nestor Velez is hereby ACQUITTED of the crime of violation of Article 210 of the Revised Penal Code
on the ground that it is the finding of this Court that he was innocent of the crime charged;

2. Accused Engineer Ruben Tad-y is hereby pronounced GUILTY BEYOND REASONABLE DOUBT of Violation of Paragraph 2
of Article 210 of the Revised Penal Code and is hereby sentenced to suffer imprisonment of 2 years and 4 months, as
minimum, to 3 years, as maximum, in the absence of any mitigating or aggravating circumstances, in accordance with
the mandatory provisions of the Indeterminate Sentence Law, and, to pay the fine in the amount of P8,000.00 pesos.

3. Accused Ruben Tad-y, in case of his insolvency to pay the fine, shall suffer a subsidiary penalty of imprisonment at the
rate of one day for each 8 pesos and shall remain in confinement until his fine is satisfied. However, his subsidiary
imprisonment shall not exceed one-third of the term of the sentence, and in no case shall it continue for more than
one year, and no fraction or part of day shall be counted against the prisoner, in accordance with Article 39 of the
Revised Penal Code; and

4. Accused Ruben Tad-y is also hereby ordered to suffer the penalty of special temporary disqualification and is hereby
ordered to be deprived of his right to hold office and employment in the City Engineers Office, as well as for holding
similar offices or employments either perpetually or during the term of his sentence in accordance with paragraph 4
of Article 210, in relation to Article 31, paragraphs 1 and 2 of the Revised Penal Code.

SO ORDERED.[68]

The MTC gave full credence and probative weight to Encabos testimony, ruling that Tad-y demanded and received P4,000.00
from Encabo on July 24, 1995 in consideration for his signing a certificate of occupancy. It further ruled that the accused signed the
said certificate on the said date.
Tad-y appealed the decision to the RTC, which rendered judgment on September 13, 1999, affirming the decision of the MTC
with modification as to the penalty imposed. The fallo of the decision reads:

WHEREFORE, the judgment of the trial court is hereby affirmed except for the modifications that the accused Ruben Tad-y y Babors
sentence should consist of an indeterminate penalty of four (4) months of Arresto Mayor, as minimum, to one (1) year, eight (8)
months and twenty- one (21) days of Prision Correccional, as maximum, and for him to pay the cost.

SO ORDERED.[69]

The RTC denied Tad-ys motion for reconsideration. However, the RTC agreed with Tad-ys contention that what the latter signed
was a certificate of final inspection and not a certificate of occupancy.
In a parallel development, the RTC rendered judgment on May 18, 2001 in Criminal Case No. 17186, acquitting Tad-y and Velez
of the charge.[70]
The accused, now the petitioner, filed a petition for review of the decision of the RTC. The CA rendered judgment on February 2,
2001 affirming the RTC decision in toto.[71] Upon the denial of the motion for reconsideration of the said decision, the petitioner filed
his petition for review on certiorari with this Court.
The threshold issue raised by the petitioner is factual whether the prosecution adduced proof beyond reasonable doubt of his
guilt for direct bribery under the second paragraph of Article 210 of the Revised Penal Code.
The petitioner avers that under the Information, and as held by the courts a quo, he was charged with direct bribery under the
second paragraph of Article 210 of the Revised Penal Code, for soliciting and receiving P4,000.00 on July 24, 1995 from Mildred Wong,
through Encabo, in consideration for his signing/approval of the certificate of occupancy of the Atrium Building, and that he signed
said certificate on said date.
The petitioner maintains that he did not sign a certificate of occupancy. He posits that a certificate of occupancy is signed by the
city building official, and that he has nothing to do with the execution of such certificate. Hence, he is not criminally liable for direct
bribery, one of the essential elements for the crime being that the act which he agreed to do or execute is connected to the
performance of his official duties.
The petitioner assails the credibility and probative weight of Encabos testimony. He avers that Encabo had an axe to grind against
him because, on prior occasions, he had denied the applications for building permit filed by his principals due to structural deficiencies
in the buildings.
The petitioner further insists that he did not demand, nor could have demanded the amount of P4,000.00 on April 25, 1995, or
thereafter, because as of the said date, the Atrium building had not yet been completed. The petitioner avers that Encabos claim that
he demanded P4,000.00 for the signing the certificate of final inspection is belied by the fact that he indicated the deficiencies of the
building at the dorsal portion of the certificate. It was only in the first week of June 1995 that Baja and Tuvida made their final
inspection and signed the certificate of final inspection.[72] Even Encabo admitted that the petitioner refused to sign the said certificate
because as of July 24, 1995, there had been no final inspection of the building, and not because he was demanding P4,000.00 from
Encabo.
The petitioner posits that the case for the prosecution was enfeebled by its failure to adduce in evidence the certificate of final
inspection he signed on July 24, 1995. It adduced in evidence only the certificate of final inspection bearing all the signatures of the
officers in the OCE, except his.[73] He claims that the respondent failed to prove beyond reasonable doubt that he knew of the contents
of the white envelope. He, in fact, believed that the envelope contained the requisite certificates of inspection. Moreover, he did not
open the envelope and instead passed it over to Velez for verification, as he was on his way to a bowling game.
The petitioner further contends that the respondent even failed to adduce in evidence the white envelope he received from
Encabo, or prove that the said white envelope was what he actually received from Encabo. He posits that there is no probable cause
for his and Velezs warrantless arrest; hence, any evidence confiscated by the policemen from them is inadmissible in evidence.
The respondent, through the Office of the Solicitor General (OSG), avers that it adduced proof beyond reasonable doubt of the
petitioners guilt for direct bribery. It insists that the petitioner failed to prove that Encabo had any ulterior motive to falsely charge
and testify against him. The OSG points that the testimony of Encabo is honest and straightforward; hence, entitled to full probative
weight. It is hard to believe, the OSG avers, that the petitioner would accept the envelope without knowing its contents. The petitioner
demanded and received from Encabo the P4,000.00 contained in a white envelope in consideration of his signing the certificate of
occupancy.
The OSG avers that the petitioners signing of the certificate of occupancy was his duty as the engineer in charge of the structural
design in the City Engineers Office of Bacolod City. The OSG notes that the petitioner was found positive for ultraviolet powder.

The Ruling of the Court

The petition is meritorious.

Rule 45 of the Rules of Court provides that only questions of fact may be raised in this Court on a petition for review on certiorari.
The reason is that the Court is not a trier of facts. However, the rule is subject to several exceptions. The Court may delve into and
resolve factual issues in those cases where the findings of the trial court and the CA are absurd, contrary to the evidence on record,
impossible, capricious or arbitrary, or based on a misappreciation of facts. [74]
In this case, the Court is convinced that the findings of the MTC, the RTC and the CA, on the substantial matters at hand, are
absurd and arbitrary, and contrary to the evidence on record.
Article 210 of the Revised Penal Code provides:

Art. 210. Direct Bribery. Any public officer who shall agree to perform an act constituting a crime, in connection with the performance
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 prison mayor in its minimum and medium periods and a fine of not less than three times the
value of the gift, in addition to the penalty corresponding to the crime agreed upon, if the same shall have been committed.
If the gift was accepted by the officer in consideration of the execution of an act which does not constitute a crime, and the officer
executed said act, he shall suffer the same penalty provided in the preceding paragraph; and if said act shall not have been
accomplished, the officer shall suffer the penalties of prision correccional in its medium period and a fine of not less than twice the
value of such gift.

If the object for which the gift was received or promised was to make the public officer refrain from doing something which it was his
official duty to do, he shall suffer the penalties of prision correccional in its maximum period to prision mayor in its minimum period
and a fine not less than three times the value of the gift.

In addition to the penalties provided in the preceding paragraphs, the culprit shall suffer the penalty of special temporary
disqualification.

The provisions contained in the preceding paragraphs shall be made applicable to assessors, arbitrators, appraisal and claim
commissioners, experts or any other persons performing public duties.

Direct bribery has the following essential elements:

1. the offender is a public officer;

2. the offender accepts an offer or promise or receives a gift or present by himself or through another;

3. such offer or promise be accepted or gift or present be received by the public officer with a view to committing some
crime, or in consideration of the execution of an act which does not constitute a crime but the act must be unjust, or
to refrain from doing something which it is his official duty to do; and

4. the act which the offender agrees to perform or which he executes is connected with the performance of his official
duties.[75]

The prosecution is mandated to prove, beyond reasonable doubt, the essential elements of the felony and that the petitioner is
the perpetrator thereof.[76]
Official duties include any action authorized. It is sufficient if the officer has the official power, ability or apparent ability to bring
about or contribute to the desired end. The acts referred to in the law, which the offender agrees to perform or execute, must be
ultimately related to or linked with the performance of his official duties. It is sufficient if his actions, affected by the payment of the
bribe, are parts of any established procedure consistent with the authority of the government agency. [77] However, where the act is
entirely outside of the official functions of the officer to whom the money is offered, the offense is not bribery. [78]
The agreement between the public officer and the bribe-giver may be express or implied. Such agreement may be proved by
direct or circumstantial evidence. Proof of such an agreement may rest upon relevant and competent circumstantial evidence. To
hold, otherwise, would allow the culprit to escape liability with winks and nods even when the evidence as a whole proves that there
has been a meeting of the minds to exchange official duties for money. [79]
It is not necessary that the money is received by the offender before or at the time he agreed to perform or execute an act. It is
sufficient if he received the money afterwards in pursuance of a prior arrangement or agreement. [80]
Indisputably, the petitioner is a public officer under Article 203 of the Revised Penal Code. [81] There is no allegation in the
Information that the issuance of the certificate of occupancy is a crime or is unjust.
The Court agrees with the petitioners contention that the prosecution failed to prove his guilt for the crime charged beyond
reasonable doubt.
The MTC convicted the petitioner of direct bribery on its finding that the petitioner demanded P4,000.00 from Wong, through
Encabo, in consideration of signing a certificate of occupancy, and that on July 24, 1995, the petitioner received the said amount from
Encabo and signed the said certificate for the Atrium building. The CA affirmed the said findings of the MTC in its decision, thus:

All the elements above are present in the case at bench. Petitioner Ruben Tad-y was an employee at the City Engineers Office of
Bacolod City. That petitioner-accused accepted the amount of P4,000.00 which he demanded from Julio Encabo, a representative of
Mildred Wong who will secure a certificate of occupancy for the building of the latter and handed it over to his subordinate Nestor
Velez, petitioners co-accused, on April 24, 1995 at Andre Bakeshop. And in consideration of the amount thus given, petitioner would
sign the certificate of occupancy, which is his duty as engineer in charge of structural designs at the City Engineers Office of Bacolod
City. It must be added that petitioner signed the certificate of occupancy, the original of which was kept at the records section of the
City Engineers Office, after receiving the envelope containing P4,000.00. [82]

However, there is no iota of competent and credible evidence to support these findings. There is no evidence on record that the
petitioner and Encabo met on April 24, 1995. In fact, it was only on April 25, 1995 that Encabo arrived at the OCE to make arrangements
for the final inspection of the building by the officers concerned, the signing of the certificate of inspection by said officers, and the
signing of the certificate of occupancy by the building official.
There is also no dispute that what was signed by the petitioner, on July 24, 1995, following his final inspection of the building,
was the certificate of final inspection and not a certificate of occupancy of the building. Thus, Encabo testified:
Q- But in (sic) July 24, 1995 when you mentioned that they inspected again the building?
A- Yes, Sir.
Q- And after inspection you went down to Andre Bakeshop which is the ground floor of the Atrium Building. What happened
there at Andre Bakeshop?
A- I gave him the papers and let him sign the necessary papers.
Q- What necessary papers are you referring to?
A- This certificate of Final Inspection where he is the one who never affixed his signature.
Q- When you gave the Certificate of Final Inspection, he signed it?
A- Yes, Sir.[83]
It was only on July 27, 1995, after the petitioner had signed the certificate of final inspection on July 24, 1995, that the city
building official approved and issued the certificate of occupancy for the building. [84]
There is also no credible evidence on record that the petitioner demanded P4,000.00 from Wong, through Encabo, in exchange
for the signing of the certificate of occupancy. Indeed, it is incredible that the petitioner would demand the said amount as a
precondition to his signing a certificate, considering that, under Section 309 of P.D. No. 1096,[85] the authority to sign said certificate
is vested specifically on the building official, and not on the petitioner:

Section 309. Certificate of Occupancy

No building or structure shall be used or occupied and no change in the existing use or occupancy classification of a building or
structure or portion thereof shall be made until the Building Official has issued a Certificate of Occupancy therefor as provided in this
Code.

A Certificate of Occupancy shall be issued by the Building Official within thirty (30) days if after final inspection and submittal of a
Certificate of Completion referred to in the preceding section, it is found that the building or structure complies with the provisions of
this Code.

The Certificate of Occupancy shall be posted or displayed in a conspicuous place on the premises and shall not be removed except
upon order of the Building Official.

The non-issuance, suspension and revocation of Certificates of Occupancy and the procedure for appeal therefrom shall be governed
in so far as applicable, by the provisions of Section 306 and 307 of this Code. [86]

Calibrating the testimony of Encabo, the prosecution sought to prove that the petitioner agreed to conduct a final inspection of
the building and sign a certificate of final inspection upon the receipt of P4,000.00.
However, the testimony of Encabo is not entitled to full probative weight since it is evasive and chameleonic, enfeebled by frontal
inconsistencies on substantial matters which the trial court and the CA ignored.
In the court a quo, Encabo testified, on direct examination, that on April 25, 1995, the petitioner dissuaded him from following
up and seeing the approval for the certificate of occupancy because Wong failed to pay the P4,000.00, the balance due for the
petitioners services in securing the building permit. However, Encabo also claimed that the petitioner agreed to conduct a final
inspection of the building and sign a certificate of final inspection if the money was given to the latter. When he testified in Criminal
Case No. 17186, Encabo declared that the petitioner refused to sign a certificate of inspection on April 25, 1995 unless the P4,000.00
he demanded was paid.[87] However, Encabo gave a completely different story to the CIS when he gave his sworn statement; he
claimed that, on April 25, 1995, the petitioner demanded P4,000.00 in consideration for his signature on the certificate of
occupancy.[88]
When he testified in Criminal Case No. 17186, Encabo admitted that the petitioner did not demand P4,000.00 as a precondition
to his final inspection of the building and his signing of the certificate of final inspection. The petitioner refused to sign a certificate of
final inspection for the sole reason that he had not yet conducted the required final inspection.
Atty. Sorbito:
On April 25, 1995, when you went there accused Ruben Tad-y refused to sign?
WITNESS:
Yes, Sir.
ATTY. SORBITO:
You mean to say Mr. Encabo that even without final inspection any of the signatories to the occupancy permit can
affixed (sic) their signatures without inspection?
WITNESS:
They have to inspect.
ATTY. SORBITO:
So when Ruben Tad-y refused to sign the permit on April 25, 1995, its because there was no final inspection made yet?
WITNESS:
Yes, Sir.
ATTY. SORBITO:
It is not because there was no money or P4,000.00?
WITNESS:
No, Sir.
ATTY. SORBITO:
In short, Ruben Tad-y did not ask for anything because only there in (sic) no inspection was (sic) made?
WITNESS:
Yes, Sir.[89]
Encabo could not have asked the petitioner or any of the officers in the OCE for that matter to sign the certificate of occupancy
because only the building official has the authority to sign the same. Moreover, the city building official could not have signed the
certificate because no final inspection of the building had been conducted, and no certificate of final inspection had been signed by
the OCE officers.
Encabos claim that the petitioner agreed to make a final inspection of the building if he was paid P4,000.00 is belied by his
testimony in the court a quo, that, during the second week of May 1995, the petitioner and the other officers of the OCE conducted
an inspection of the building.[90] Encabo did not give any centavo to the petitioner on that occasion. However, the petitioner and
Encabo had a quarrel in the course of which the petitioner tried, in anger, to squeeze Encabos neck. [91] As testified to by the petitioner,
Encabo insisted on paying for the food and drinks consumed by him and the other OCE officers after their inspection of the building,
despite the petitioners insistence that he should pay for the bill:
Q You have also mentioned about that incident whether you were antagonized by Mr. Encabo which you said you have
squeezed his chain (sic) with your hands, where was that establishment?
A At the second floor of Tasty Treat at Araneta Street, Bacolod City.
Q And you were drinking beer with Mr. Encabo during that time?
A When I arrived they were already drinking.
 Q And you also started to drink beer?
A Yes, Sir.
Q And how many bottles have you consumed, if you can still recall?
A Two bottles.
Q And it was even Mr. Encabo who paid the bill for the drinking spree?
ATTY. SORBITO:
Misleading, your Honor.
COURT:
Who pay (sic) for the bills?
A That is (sic)where the trouble began because after I have consumed two (2) bottles of beer, he asked the bills with the
intention of paying it because there is among the group are (sic) my relatives and it was my purpose to pay.[92]
Encabo testified that he sought the help of the City Mayor for the petitioner to conduct the final inspection of the building, but
did not inform the Mayor that the petitioner had demanded P4,000.00 in consideration for his inspection of the building. He claimed
that the petitioner was his compadre and he did not want to put him in a bad light:
ATTY. SERFINO:
Q- When you went to the City Mayor, you are yet thinking that you will go to the CIS?
A- I have already reported that.
Q- What is your reason of not telling the mayor that Ruben Tad-y demanded money?
A- Being the government employee and he is my kumpare, I do not want to cause very bad occasion.[93]
Encabo projected himself as solicitous and protective of the petitioners well-being and the maintenance of the communitys
regard to his compadre, the petitioner. However, when asked why he had to complain to the CIS and thus placed the petitioner in
jeopardy for prosecution of an offense, Encabo replied that he did so because the petitioner had mauled him:
Q Now, you have already gone to the CIS, as you said, is it not?
A Yes, Sir.
Q And, you have already reported to the CIS that supposed demand from you?
A Well, he is (sic) trying to maul me.[94]
What is so disconcerting is that Encabo claimed that even months after the city building official had already issued the certificate
of occupancy to Wong on July 27, 1995, the petitioner still conducted inspections of the building, along with the other officers, in
September and October 1995:
Q So, you are now certain you have not inspected the building and several other officials of the City Engineers Office in the
afternoon of April 25, 1995, when you went to the office?
A We do the inspection together with the accused and others during and after April 25 and October 1995.
Q Please answer me, you are definitely sure that it was on April 25, 1995?
A Yes, the inspection.
Q When you said yes, it was not on that date?
A The date is (sic) April 25, 1995 is not exactly the date of inspection.
Q In what month after April 25, 1995 when you inspected the building but prior to October 25, 1995?
A It was October or September, somewhat like that. That September or October I cannot pinpoint the exact date because I
dont have the record of that.[95]
 It is incredible that the petitioner and the other officers would continue with their inspections of the building even months after
the issuance of the certificate of occupancy, and when the petitioner had already been charged with direct bribery in the MTC. Indeed,
on September 21, 1995, Encabo was already testifying in Criminal Case No. 17186 for the prosecution against the petitioner.
The prosecution cannot find solace in the entrapment operations conducted by the CIS and the aftermath thereof.
First. The petitioner brought along Engineer Nestor Velez, a building inspector in the OCE, on his final inspection of the building
after which they had a snack with Encabo. If, as claimed by Encabo, the petitioner expected to receive P4,000.00 from him, as bribe,
it would be contrary to human experience to bring another person along (in this case, Velez) to witness the receipt of the envelope
containing the money. Moreover, the Andre Bakeshop is a public place where people enter to make purchases. Indeed, this Court
in Formilleza v. Sandiganbayan,[96] declared

However, what is revealing is that Mrs. Sevilla and Mrs. Dimaano were present around the table in the canteen with the petitioner
and Mrs. Mutia when the latter allegedly handed the money to the petitioner. There were other persons in the premises like the PC
agents whose identities petitioner possibly did not know. Under the circumstances and in such a public place it is not probable that
petitioner would have the nerve to accept bribe money from Mrs. Mutia even under the table. If the petitioner knew and was prepared
to accept the money from Mrs. Mutia at the canteen, the petitioner would not have invited her officemate Mrs. Sevilla to join them.
Mrs. Sevilla stated she did not see the alleged passing of the money. She could not have seen the money as it was passed on under
the table or when, as petitioner said, it was quickly placed in her hand when she stood up. What Mrs. Sevilla is sure of is that when
they were about to leave the canteen, two (2) men approached petitioner, one of whom took pictures, and the petitioner shouted at
Mrs. Mutia, What are you trying to do to me? The reaction of petitioner is far from one with a guilty conscience.

Second. The petitioner walked ahead of Velez and Encabo out of the Atrium building after the final inspection, and was on his
way to the bowling tournament. However, he joined Encabo and Velez for a snack only because Encabo had invited him. Such behavior
on the part of the petitioner is inconsistent with one who expected to receive P4,000.00 from Encabo after his final inspection of the
building.
Third. When Encabo handed the envelope to the petitioner, the latter inquired what the envelope was for. The petitioner opened
the envelope in full view of Velez and saw its contents. He handed the envelope to Velez instead of putting it into his pocket, even
after Encabo had assured the petitioner that it was not dangerous for the latter to receive it. It is incredible that, as claimed by Encabo,
the petitioner handed over the envelope to Velez under the table.
Such facts and circumstances show that the petitioner had no intention to accept the money and consider it his own; they negate
the prosecutions contention that the petitioner demanded and expected to receive P4,000.00 as bribe money. Indeed, this Court ruled
in Formilleza

The essential ingredient of indirect bribery as defined in Article 211 of the Revised Penal Code is that the public officer concerned must
have accepted the gift 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 otherwise will encourage unscrupulous individuals
to frame up public officers by simply putting within their physical custody some gift, money or other property.[97]

The foregoing ruling of this Court applies not only to charges of indirect bribery but also to direct bribery. The respondents
contention that the petitioner handed the envelope to Velez under the table is belied by the testimonies of the petitioner and Velez.
Fourth. The police officers even forced the petitioner to incriminate himself by forcing him to touch the contents of the envelope,
but the petitioner managed to parry the attempt with his right arm. Thus, Velez testified:
Q What happened outside the bakeshop?
A When we went out of the Atrium building, because we plan to left (sic) the place separately or to part ways.
Q You mean to say that Engr. Tad-y was going to his own direction and you to another direction and Mr. Encabo to a
different direction?
A Yes.
Q Were you able to do that?
A When I was already at the middle of Gonzaga Street, somebody took hold of my arm, almost my shoulder.
Q Then what happened?
A I was shocked or surprised, somebody took hold of my arm.
Q Did he say anything?
A When I turned my head, he told me that I am (sic) under arrest.
Q What else?
A After hearing that, I asked him what sins (sic) have we committed?
Q What did he say?
A He was trying to search on my trousers.
Q Did he show any warrant or authority for him to do that?
A Never.
Q No warrant of arrest or search warrant?
A No.
Q So, what did he find in your trousers?
A While he was searching me, I was asking him, what money and he asked me, where is that envelope you received, while
he was holding me, its in your pocket, get it. So, I get (sic) it because he was holding me in my hand and at the same
time squeezing it.
Q What arm?
A At first, it was my left hand that he was searching, he was able to took (sic) hold of my right arm as it is used to be the one
to pick the particular envelope.
Q So, how actually sure were you, when you get (sic) the envelope from your pocket?
A It appears that myself because he was doing it by squeezing my hand.
COURT:
Q About what part of your pocket?
COURT INTERPRETER:
At this juncture, the witness is pointing at the right side of his pocket.
ATTY. SERFINO:
Q And after you have (sic) involuntarily taken that envelope from your pocket, what did they do?
A When he was squeezing my hand, I was able to get the money and they brought me to Engr. Tad-y.
Q How far was Engr. Tad-y when they brought you there?
A Maybe ten to fifteen meters.
Q And when you were already near Engr. Tad-y, did you notice what was happening to Engr. Tad-y?
A When I was there going toward Engr. Tad-y, I saw one person holding his hands.
Q When you were near him, what happened next?
A When I was near Engr. Tad-y, they let me open that particular envelope.
Q Who was handling that particular envelope towards Engr. Tad-y?
A Its myself holding it while he was holding me towards Engr. Tad-y.
Q You mean the very hand he was holding, squeezing, its also the hand holding the envelope?
A Yes.
Q Was it [the] left or right hand?
A At first left, when he pulled me it was already his right hand.
Q What happened when you were near Engr. Tad-y?
A When I have already opened the envelope and when they saw the content of that envelope, the money, they try (sic) to
pull that so that Engr. Tad-y will receive the money from me.
Q How did you open that envelope in that stage, was it already opened or did you have to exert some efforts to open?
A I opened it because it was closed.
Q Did Engr. Tad-y received (sic), take hold of that money?
A When he found out that the content is money, he did not hold it.
Q What did he do?
A He tried not to receive it but he was forced by one arresting officer.
Q What else took place at that stage on that day?
A When they were not able to force Engr. Tad-y to take hold of the money, they tried to stop a taxi. [98]
The testimony of the petitioner on this matter reads:
Q Now, what happened after you saw that there was another person holding your co-accused?
A They were searching him in order to have the white envelope out.
Q So, did you see any envelope after that?
A Yes, Sir.
Q How did you see it or how did you happen to see it?
A Because he let Mr. Velez open his pocket and have it left opened.
Q And then what happened?
A When the said envelope was already opened he hold (sic) Mr. Velez and pulled Mr. Velez towards me.
Q Were they able to come near you?
A Yes, Sir.
Q Now, while your co-accused was already near you, what transpired among you?
A A person of small size holding the hands of Mr. Velez holding the white envelope because he wants that I will hold the
white envelope.
Q Go ahead.
A It was already opened and he wanted me to hold the white envelope.
Q When you were still inside the bakeshop, will you please inform the Hon. Court if the envelope was already opened or
not?
A Not yet.
Q The prosecution witness, Julio Encabo here testified that inside the bakeshop, after he handed to you the envelope, you
opened it and peeped inside the envelope, is this true?
A It is a big lie.
Q Why do you say that it is a big lie?
A It will be subject of the evidence in the Police Laboratory. It was only shown that there was fluorescent powder.
(Witness, at this juncture is pointing to his right arm.)
Q You are referring to Exhibit 4-A?
 A Yes, Sir.
ATTY. SERFINO:
I would like to manifest, your Honor that on Exhibit 4, there is nothing there that indicates that there was any powder marks
in the hands of this accused.
Q Now, what else happened when your co-accused was already near you?
A They tried to let the hands of Nestor come towards me but I was trying to move away.
Q On the basis of what you saw, if you know what was the reason that (sic) they were trying to let you hold the envelope?
ASST. CITY PROSECUTOR CENTENO:
Asking for a conclusion, your Honor.
COURT:
Sustained.
COURT:
Reform.
ATTY. SERFINO:
Q From that stage, what else happened?
A Since they cannot do the thing of letting the hands of Nestor Velez go near me, it was the person who picked the white
envelope and tried to give it to me, but I was trying to parry it. (Witness is pointing to his right forearm.)
Q Thereafter, what happened?
A (Witness, at this juncture is trying to hold the left hand at his waist.) I do not know whether it was a camera or a gun.
Q What else happened?
He said to me, relax ka lang, you might be fell (sic) down.
Q Was he a Tagalog?
A I do not know but he speak (sic) in Tagalog.
Q How did that incident in front of that street came to close?
A I stayed calm but I was afraid of them.
Q After you relaxed because of your fear, is there anything else that took place?
A They stopped a taxi and then pulled me to ride in the taxi together with the co-accused, Nestor Velez.[99]
The testimonies of Velez and the petitioner were corroborated by the Initial Laboratory Report of Forensic Chemist Rea
Villavicencio that the petitioners right arm tested positive for ultraviolet powder. The Report and Sketch drawn by Villavicencio did
not show that any of the fingers of the petitioner were positive for ultraviolet powder.
In sum then, the Court rules that the prosecution failed to prove the guilt of petitioner Rubin Tad-y of the crime charged.
Consequently, the Petition is GRANTED. The decisions of the Municipal Trial Court in Cities, the Regional Trial Court and the Court of
Appeals are REVERSED and SET ASIDE. The petitioner is ACQUITTED of the crime charged in the Information.
SO ORDERED.
JUANITO T. MERENCILLO, G.R. Nos. 142369-70 vs PEOPLE OF THE PHILIPPINES,*

This petition for review[1] assails the June 18, 1999 decision[2] of the Sandiganbayan in A.R. Case Nos. 004-005 affirming[3] the
omnibus decision[4]of the Regional Trial Court (RTC) of Tagbilaran City, Branch 47, in Criminal Case Nos. 9482-83 finding petitioner
Juanito T. Merencillo guilty of violating Section 3(b) of RA 3019[5] and Article 210[6] of the Revised Penal Code.

The information charging petitioner for violation of Section 3(b) of RA 3019 in Criminal Case No. 9482 read:
 That, on or about the 28th day of September, 1995, in the City of Tagbilaran, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused being then a public official connected with the Bureau of
Internal Revenue as its Group Supervising Examiner, did then and there willfully, unlawfully and feloniously and
with intent of personal gain, directly demand and extort from a certain Mrs. Maria Angeles Ramasola Cesar the
amount of TWENTY THOUSAND PESOS (P20,000.00), Philippine Currency, in connection, in consideration and in
exchange for the release of the certification of her payment of the capital gains tax for the land purchased by the
Ramasola [Superstudio] Inc. from one Catherine Corpuz Enerio, a transaction wherein the aforesaid accused has to
intervene in his official capacity, and to which the said Mrs. Maria Angeles Ramasola Cesar reluctantly agreed but
upon prior consultation with the military authorities particularly the elements of the 702nd Criminal Investigation
Command [CIC] who set up the accused for a possible entrapment resulting to (sic) his being caught in the act of
receiving an envelope supposedly containing the amount of TWENTY THOUSAND PESOS (P20,000.00) but consisting
only of four (4) marked one hundred peso bills and the rest all bogus (paper) monies, to the damage and prejudice
of the said Mrs. Maria Angeles Ramasola Cesar in particular and the public and the government in general in the
amount to be proved during the trial of the case.

Acts committed contrary to the provisions of Section 3(b) of [RA] 3019.[7]

On the other hand, the information for direct bribery penalized under Article 210 of the Revised Penal Code in Criminal Case

No. 9483 charged:

That, on or about the 28th day of September, 1995 in the City of Tagbilaran, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused being then a public official connected with the performance of
official duty as its Group Supervising Examiner, did then and there willfully, unlawfully and feloniously and with intent
of personal gain, demand, extort and agree to perform an act constituting a crime, an act which is in violation of the
Anti-Graft and Corrupt Practices Act, that is that the certification for payment of the capital gains tax relative to the
land purchased by the Ramasola Superstudio Incorporated from Catherine Corpus Enerio be released by him only
upon payment of an additional under the table transaction in the amount of TWENTY THOUSAND PESOS (P20,000.00),
Philippine Currency, which Mrs. Maria Angeles Ramasola Cesar reluctantly agreed, but upon prior consultation with
the military authorities particularly the elements of the 702nd Criminal [Investigation] Command (CIC) who set up the
accused for a possible entrapment resulting to (sic) his being caught in the act of receiving an envelope supposedly
containing the amount of TWENTY THOUSAND PESOS (P20,000.00) but, consisting only of four (4) marked one
hundred pesos bills and the rest all bogus (paper) monies, an act performed by the accused in his official capacity as
Group Supervising Examiner of the BIR, to the damage and prejudice of Mrs. Maria Angeles Ramasola Cesar in
particular and the public and the government in general in the amount to be proved during the trial of the case.

Acts committed contrary to the provisions of Article 210 of the Revised Penal Code of the Philippines. [8]

Petitioner pleaded not guilty to both charges when arraigned. Thereafter trial ensued and the cases were tried jointly.

THE FACTS ESTABLISHED

BY THE PROSECUTION

In the morning of September 13, 1995, Lucit Estillore went to the Bureau of Internal Revenue (BIR) office in Tagbilaran City

to ask for the computation of taxes due on the sale of real property to Ramasola Superstudio, Inc. and to apply for a certificate

authorizing registration (CAR).[9] At the BIR office, she was entertained by revenue examiner Lourdes Fuentes who computed the

documentary stamp tax (P37,500) and capital gains tax (P125,000) due on the transaction. The computation was approved by

petitioner in his capacity as group supervisor. Estillore paid the taxes in the bank and returned to apply for a CAR. She submitted the
application together with relevant documents to Fuentes for processing. Fuentes prepared the revenue audit reports and submitted

them together with the application for the CAR to petitioner for preliminary approval. [The application was to be forwarded thereafter

to the Revenue District Officer (RDO) for final approval.] Fuentes advised Estillore that the CAR would be released after seven days.

At around 10:00 a.m. of the same day, private complainant Maria Angeles Ramasola Cesar [10] (Cesar) received a call from

Estillore. She was told that petitioner wanted to see her for some negotiation. She proceeded to petitioners office where the latter

demanded P20,000 in exchange for the approval of the CAR. Cesar replied that she needed to confer with her two brothers who were

her business associates.

The following day, on September 14, 1995, Cesar received a call from petitioner who was following up his demand. Later that

day, Cesar received another call from petitioner who told her that she could get the CAR after four or five days.

Cesar was able to return to the BIR only on September 20, 1995. When petitioner saw her, he repeated his demand

for P20,000 although the CAR had in fact been signed by RDO Galahad Balagon the day before, on September 19, 1995, and was

therefore ready for release. On Cesars inquiry, the releasing clerk, Susan Cabangon, informed Cesar that she (Cabangon) was still

waiting for petitioners go signal to release the document.

On September 22, 1995, Cesar visited RDO Balagon and complained about petitioners refusal to release the CAR unless his

demand was met. RDO Balagon assured Cesar that he would look into her complaint. Subsequently, Cesar received a call from

petitioner informing her that she could get the CAR but reminded her of his demand. He told her that he was willing to accept a lesser

amount. It was at this point that Cesar decided to report the matter to the authorities. She sought the help of the Provincial Director

of the Philippine National Police (PNP) in Bohol, Senior Superintendent Dionaid Baraguer.

The following day, Sr. Supt. Baraguer referred Cesars complaint to the chief of police of Tagbilaran City who coordinated with

Cesar for the entrapment of petitioner. Cesar was instructed to prepare two bundles of bogus money by putting a one-hundred peso

bill on each side of each of the two bundles to make it appear that the two bundles amounted to P10,000 each or a total of P20,000.

After the serial numbers of the four one-hundred peso bills were recorded, the entrapment was set for September 28, 1995.

On the appointed day, Cesar called petitioner and pleaded for the release of the CAR as well as for the reduction of petitioners

demand. Petitioner cautiously told Cesar not to talk about the matter on the phone and asked her to see him instead. Cesar went to

petitioners office with the two bundles of bogus money inside a white envelope.
 Petitioner was entertaining a lady visitor when Cesar arrived. The members of the PNP entrapment team were already in

petitioners office posing as civilians. On seeing Cesar, petitioner handed the CAR to her and, as she was signing the acknowledgment

for the release of the CAR, he informed her that he was going down to the second floor. Cesar took this as a cue for her to follow.

As petitioner left his office, he held the door open for Cesar to follow. On reaching the third floor lobby, petitioner uttered

Here only. Cesar handed the envelope containing the two bundles of marked money to petitioner who, upon receiving it, asked Why

is this thick? Before Cesar could answer, a member of the PNP entrapment team photographed petitioner holding the envelope.

Petitioner panicked, hid the envelope behind his back and turned towards the window at the back of the BIR building. On seeing that

the window was closed, he turned around towards the open window facing the street. He threw the envelope towards the window

but it hit the ceiling instead, bounced and fell to the first floor of the BIR building.[11]The PNP entrapment team then introduced

themselves to petitioner and invited him to go with them to their headquarters.

Charges were filed against petitioner. During the trial, petitioners evidence consisted of nothing more than a general denial

of the charges against him. He claimed that he never asked for money and that the allegations of demand for money existed only in

Cesars mind after she was told that there was a misclassification of the asset and additional taxes had to be paid. He was surprised

when policemen suddenly arrested him as soon as Cesar handed him a white envelope the contents of which he suspected to be

money.

After trial, the RTC found petitioner guilty as charged. The dispositive portion of the decision read:

WHEREFORE, premises considered, the Court finds the accused Juanito T. Merencillo, guilty beyond reasonable
doubt as principal by direct participation, defined and penalized by Section 3(b) of [RA] 3019, otherwise known
as the Anti-Graft and Corrupt Practices Act, and sentences him to suffer the indeterminate penalty of
imprisonment for eight (8) years and one (1) month as minimum to fifteen (15) years as maximum, there being
aggravating circumstances considered under Section 3(e) and Section (f) of [RA] 3019 in relation to Article 14(1)
and (11) of the [RPC] in the sense that the offender have taken advantage of his public position, and that the
crime was committed in consideration of a price or promise, without any mitigating or extenuating circumstances
to neutralize or offset any of the aggravating circumstances, with perpetual disqualification from public office,
and the Court further finds the accused guilty beyond reasonable doubt as principal by direct participation, for
the crime of Direct Bribery defined and penalized by Article 210 of the Revised Penal Code and sentences him to
suffer the indeterminate penalty of four (4) years and one (1) day as minimum to eight (8) years of prision mayor
as maximum and a fine of Sixty Thousand (P60,000.00) Pesos, all as mandated by law. The accused Juanito T.
Merencillo likewise is ordered to indemnify private complainant [Cesar] to pay moral damages in the amount
of P50,000.00 and attorneys fees in the amount of Five Thousand (P5,000.00) Pesos. Costs shall also be taxed
against the accused.

CONTRARY TO LAW.[12]
 Petitioner appealed the RTC decision to the Sandiganbayan. The Sandiganbayan, however, denied the appeal and affirmed

the RTC decision with modification reducing the penalty of imprisonment for violation of Section 3(b) of RA 3019 to an indeterminate

sentence of six years and one month of prision mayor, as minimum, to ten years of prision mayor, as maximum.[13] Thus, this petition.

Petitioner basically raises two points: (1) the Sandiganbayans refusal to believe his evidence over that of the prosecutions

and (2) the Sandiganbayans failure to recognize that he was placed in double jeopardy.

Petitioner faults the Sandiganbayan for affirming the RTC decision and disregarding his evidence. He claims that, had the RTC

and the Sandiganbayan not ignored the inconsistencies in the testimonies of the prosecutions witnesses, [14] he would have been

acquitted. He also asserts that he was placed twice in jeopardy when he was prosecuted for violation of Section 3(b) of RA 3019 and

for direct bribery.

Petitioner is wrong.

TRIAL COURTS EVALUATION OF EVIDENCE WILL NOT BE DISTURBED

Both the RTC and the Sandiganbayan found the testimonies of the prosecutions witnesses (that petitioner demanded and received

money from private complainant Cesar for the release of the CAR) sufficient and credible enough to sustain conviction.

This notwithstanding, petitioner now asks this Court to review the entire evidence anew, re-evaluate the credibility of

witnesses and make another factual determination of the case a course of action clearly improper given the nature of the instant

petition.[15] Questions of fact cannot generally be raised for the consideration of this Court.

The calibration of evidence and the relative weight thereof belongs to the appellate court.[16] Its findings and conclusions cannot be

set aside by this Court unless there is no evidence on record to support them. [17] In this case, however, the findings of fact of the

Sandiganbayan, affirming the factual findings of the RTC, were amply supported by evidence and the conclusions therein were not

against the law and jurisprudence. There is no reason to disturb the congruent findings of the trial and appellate courts.

Moreover, findings and conclusions of the trial court on the credibility of witnesses enjoy the respect of appellate courts

because trial courts have the distinct advantage of observing the demeanor of witnesses as they testify. [18] In the absence of any

arbitrariness in the trial courts findings and evaluation of evidence tending to show that it overlooked certain material facts and

circumstances, its findings and evaluation of evidence should be respected on review. [19] The presiding judge of the trial court had the

opportunity to actually observe the conduct and demeanor of the witnesses on the witness stand on direct examination by the
prosecution, cross-examination by the defense as well as during clarificatory questioning by the trial judge himself. [20] Between the

trial judge and this Court, the former was concededly in a better position to determine whether or not a witness was telling the

truth.[21] Based on the records, we find no reason to disagree with the trial courts assessment and to discredit the prosecutions

witnesses.

Contrary to petitioners contention, the RTC and the Sandiganbayan considered the alleged inconsistencies in the testimonies

of the prosecution witnesses. Both courts, however, ruled that the inconsistencies referred only to minor details that did not detract

from the truth of the prosecutions testimonial evidence. We agree.

Witnesses testifying on the same event do not have to be consistent in each and every detail. Differences in the recollection of the

event are inevitable and inconsequential variances are commonly regarded as signs of truth instead of falsehood. Inconsistencies in

the testimonies of prosecution witnesses with respect to minor details and collateral matters do not affect either the substance of

their declaration, their veracity or the weight of their testimony. [22] In fact, such minor flaws may even enhance the worth of a

testimony for they guard against memorized falsities.[23]

Minor discrepancies or inconsistencies do not impair the essential integrity of the prosecutions evidence as a whole or reflect

on the witnesses honesty.[24] The test is whether the testimonies agree on essential facts and whether the respective versions

corroborate and substantially coincide with each other so as to make a consistent and coherent whole. [25] Thus, inconsistencies and

discrepancies in details which are irrelevant to the elements of the crime cannot be successfully invoked as grounds for acquittal. [26]

The RTC and the Sandiganbayan correctly ruled that the inconsistencies pointed out by petitioner were neither material nor

relevant to the elements of the offenses for which he was charged. For instance, whether or not it was petitioner himself who handed

the CAR to private respondent was immaterial. The fact was that petitioner demanded and received money in consideration for the

issuance of the CAR.

PETITIONER WAS NOT PLACED
IN DOUBLE JEOPARDY

Section 3 of RA 3019 begins with the following statement:

Sec. 3. In addition to acts or omissions of public officers already penalized by existing law, the following
[acts] shall constitute corrupt practices of any public officer and are hereby declared unlawful:

xxx xxx xxx (emphasis supplied)

One may therefore be charged with violation of RA 3019 in addition to a felony under the Revised Penal Code for the same delictual

act, that is, either concurrently or subsequent to being charged with a felony under the Revised Penal Code. [27] There is no double

jeopardy if a person is charged simultaneously or successively for violation of Section 3 of RA 3019 and the Revised Penal Code.

The rule against double jeopardy prohibits twice placing a person in jeopardy of punishment for the same offense.[28] The test

is whether one offense is identical with the other or is an attempt to commit it or a frustration thereof; or whether one offense

necessarily includes or is necessarily included in the other, as provided in Section 7 of Rule 117 of the Rules of Court. [29] An offense

charged necessarily includes that which is proved when some of the essential elements or ingredients of the former, as alleged in the

complaint or information, constitute the latter; and an offense charged is necessarily included in the offense proved when the essential

ingredients of the former constitute or form a part of those constituting the latter. [30]

A comparison of the elements of the crime of direct bribery defined and punished under Article 210 of the Revised Penal

Code and those of violation of Section 3(b) of RA 3019 shows that there is neither identity nor necessary inclusion between the two

offenses.

Section 3(b) of RA 3019 provides:

Sec. 3. In addition to acts or omissions of public officers already penalized by existing law, the following
shall constitute corrupt practices of any public officer and are hereby declared unlawful:

xxx xxx xxx

(b) Directly or indirectly requesting or receiving any gift, present, share percentage or benefit, for himself
or for any other person, in connection with any contract or transaction between the Government and
any other party, wherein the public officer in his official capacity has to intervene under the law.

xxx xxx xxx

The elements of the crime penalized under Section 3(b) of RA 3019 are:
(1) the offender is a public officer;

(2) he requested or received a gift, present, share, percentage or benefit;

(3) he made the request or receipt on behalf of the offender or any other person;

(4) the request or receipt was made in connection with a contract or transaction with the government and

(5) he has the right to intervene, in an official capacity under the law, in connection with a contract or transaction
has the right to intervene.[31]

On the other hand, direct bribery has the following essential elements:
 (1) the offender is a public officer;

(2) the offender accepts an offer or promise or receives a gift or present by himself or through another;

(3) such offer or promise be accepted or gift or present be received by the public officer with a view to committing
some crime, or in consideration of the execution of an act which does not constitute a crime but the act must
be unjust, or to refrain from doing something which it is his official duty to do and

(4) the act which the offender agrees to perform or which he executes is connected with the performance of his
official duties.[32]

Clearly, the violation of Section 3(b) of RA 3019 is neither identical nor necessarily inclusive of direct bribery. While they have

common elements, not all the essential elements of one offense are included among or form part of those enumerated in the other.

Whereas the mere request or demand of a gift, present, share, percentage or benefit is enough to constitute a violation of Section

3(b) of RA 3019, acceptance of a promise or offer or receipt of a gift or present is required in direct bribery. Moreover, the ambit of

Section 3(b) of RA 3019 is specific. It is limited only to contracts or transactions involving monetary consideration where the public

officer has the authority to intervene under the law. Direct bribery, on the other hand, has a wider and more general scope: (a)

performance of an act constituting a crime; (b) execution of an unjust act which does not constitute a crime and (c) agreeing to refrain

or refraining from doing an act which is his official duty to do.

Although the two charges against petitioner stemmed from the same transaction, the same act gave rise to two separate and

distinct offenses. No double jeopardy attached since there was a variance between the elements of the offenses charged. [33] The

constitutional protection against double jeopardy proceeds from a second prosecution for the same offense, not for a different one.[34]

WHEREFORE, the petition is hereby DENIED. The June 18, 1999 decision of the Sandiganbayan in A.R. Case Nos. 004-005

is AFFIRMED.

Costs against petitioner.

SO ORDERED.

ZENAIDA V. SAZON, G.R. No. 150873

Petitioner,
Present:

YNARES-SANTIAGO, J.,
Chairperson,
- versus - AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
PERALTA, JJ.
 Promulgated:
SANDIGANBAYAN (Fourth Division),
Respondent. February 10, 2009

x------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking to nullify the Decision [1] of the
Sandiganbayan, dated July 26, 2001, in Criminal Case No. 18257, finding the petitioner Zenaida V. Sazon guilty beyond reasonable
doubt of Robbery Extortion.[2] Likewise assailed is the Sandiganbayans Resolution [3] dated November 16, 2001 denying petitioners
motion for reconsideration.

The facts, as established by the evidence presented, are as follows:

Petitioner was a Senior Forest Management Specialist of the Department of Environment and Natural Resources (DENR), National
Capital Region (NCR).[4] On September 24, 1992, the DENR-NCR issued Travel Order No. 09-92-409 directing the petitioner and a certain
Carlos Gubat I (Gubat) to proceed to Karuhatan and Navotas, both in Metro Manila, to perform the following:

1. To investigate [an] intelligence report on the alleged arrival of illegal shipment of poles and piles to Navotas,
Metro Manila; and

2. [To] verify illegal resaw operation of Honway Lumber, Karuhatan, Metro Manila. [5]

On September 25, 1992, petitioner and her team, composed of Gubat and Forester Nemesio Ricohermoso, conducted a
surveillance in Karuhatan and Navotas. While looking for the office of Vifel Shipyard, subject of the travel order, the team chanced
upon the R&R Shipyard (R&R) and asked from the lady guard for Mr. Rodrigo Opena (Mr. Opena), the Operations Manager.[6] As the
petitioner knew Mr. Opena, the former wanted to inquire from the latter where Vifel Shipyard was. [7] In the course of their
conversation with the lady guard, the team spotted squared logs, which they claimed to be dungon logs piled at the R&R
compound. Upon a closer look, the team noticed that the squared logs were mill-sawn and bore hatchet marks with a number
indicating inspection by the DENR. Since dungon logs were banned species, the team asked for the pertinent documents relative
thereto.However, the same could not be produced at that time; hence, they decided to return on October 1.[8]

On October 1, 1992, petitioner and her team returned to R&R to check the necessary documents they were looking for. Yet
again, Mr. Opena could not produce the documents as they were then allegedly in the possession of the auditing section of their main
office. Petitioner insisted that the subject logs were banned species and, thus, threatened Mr. Opena that he could be arrested and
that the logs could be confiscated. Mr. Opena, however, claimed that the logs that were seen by the petitioner were yakal and tangile
and not dungon.[9]

On October 7, 1992, Atty. Teresita Agbi, the lawyer of R&R, met with the petitioner to talk about the subject logs. Petitioner
instructed Atty. Agbi to proceed to the bakeshop at the ground floor of the formers office. [10] There, Atty. Agbi informed the petitioner
that she had in her possession the receipts covering the subject logs; but the latter averred that the receipts were not sufficient as
there were additional requirements[11] to be submitted. Believing that Atty. Agbi could not produce the required documents,
petitioner initially demanded the payment of P300,000.00 if no papers would be submitted; P200,000.00 if incomplete;
and P100,000.00 if the papers were complete.[12]

On October 13, 1992, petitioner made a final demand of P100,000.00 in exchange for the favor of fixing the papers of the
alleged hot logs. She even offered Atty. Agbi P25,000.00 as her share in the amount.[13] Atty. Agbi reported the matter to the
police. Consequently, an entrapment operation against the petitioner was planned wherein Atty. Agbi would agree to pay P100,000.00
to settle the issue with the petitioner.[14]

On October 14, 1992, the day of the scheduled entrapment operation, Atty. Agbi, together with Senior Police Officer 1 Edwin
Anaviso (SPO1 Anaviso), SPO1 Pablo Temena (SPO1 Temena) and SPO2 Renato Dizon (SPO2 Dizon) went to the Maxs Restaurant in
EDSA, Caloocan City, where they would meet the petitioner.[15] Upon seeing Atty. Agbi, petitioner instructed the former to drop the
envelope containing the money in the taxicab parked outside. Atty. Agbi, however, could not comply since her P25,000.00 commission
had not yet been segregated from the P100,000.00. Petitioner thus offered to segregate it at the ladies room.[16] As soon as Atty. Agbi
handed over the envelope containing the money, petitioner placed her wallet and handkerchief inside the envelope; [17] then SPO2
Dizon immediately accosted and handcuffed the petitioner while SPO1 Temena took pictures of the incident. [18]
Petitioner, for her part, denied the above accusation. She averred that it was in fact Atty. Agbi who proposed the settlement which
she, however, rejected. When offered a brown envelope containing money, petitioner allegedly stood up and prepared to leave, but
a man came from nowhere and immediately handcuffed her while another man took pictures. [19]

At about 11 oclock in the evening, petitioner was brought to the assistant prosecutor for inquest. [20] Thereafter, an Information for
Robbery Extortion was filed against the petitioner, the accusatory portion of which reads:

That on or about October 14, 1992, in Kalookan City, Metro Manila and within the jurisdiction of this Honorable
Court, the above-named accused, a public officer, being then the supervisor of the Department of Environment and
Natural Resources (D[E]NR), taking advantage of her public position and which offensed (sic) was committed in
relation to her office, by means of intimidation and with intent to gain, did then and there willfully, unlawfully and
feloniously demand, take and extort from the IRMA FISHING & TRADING COMPANY as represented herein by ATTY.
TERESITA A. AGBI, the amount of P100,000.00 to prevent the confiscation of more or less thirty (30) pcs. of logs,
which are found in the compound of RNR Marine Inc., purportedly for unauthorize[d] possession of the said logs,
and belonging to the said Irma Fishing & Trading Company, to the damage and prejudice of the said owner in the
aforementioned amount of P100,000.00.

CONTRARY TO LAW.[21]

Upon arraignment, petitioner entered a plea of Not Guilty.[22]

After trial on the merits, the Sandiganbayan rendered a Decision[23] convicting the petitioner of the crime of robbery extortion. The
dispositive portion of the assailed decision is quoted hereunder:

WHEREFORE, the accused, ZENAIDA SAZON y VENTURA, is hereby found GUILTY beyond reasonable doubt of the
crime of ROBBERY EXTORTION, defined under Article 293, and penalized under paragraph 5, Article 294 (as amended
by Section 9, Republic Act No. 7659) both of the Revised Penal Code, and, there being no aggravating or mitigating
circumstance that attended the commission of the crime, she is hereby sentenced, under the Indeterminate
Sentence Law, to suffer the penalty of imprisonment of from Two (2) Years and Three (3) Months of prision
correccional, as minimum, to Seven (7) Years of prision mayor, as maximum, and to pay the costs.

SO ORDERED.[24]

The court found that the elements of robbery with intimidation were established by the prosecution. [25] It was pointed out
that if the interest of petitioner was merely the submission by R&R of the required documents, she should have required that they
meet at her office and not at a restaurant. [26] Her liability, said the court, was not negated by the eventual admission of Irma Fishing
and Trading Co. that the required documents could not be produced. [27]

Hence, the instant petition on the following grounds:

I. WITH DUE RESPECT, THE RESPONDENT COURT GRAVELY ERRED IN CONCLUDING THAT THE VERSION OF
THE PROSECUTION TENDS TO SHOW THAT ALL THE ELEMENTS OF THE CRIME OF ROBBERY WITH INTIMIDATION ARE
PRESENT.

II. WITH DUE RESPECT, THE RESPONDENT COURT GRAVELY ERRED IN FINDING THE ACCUSED GUILTY
BEYOND REASONABLE DOUBT OF THE CRIME CHARGED.[28]

Apart from the instant criminal case, the DENR filed an administrative complaint against the petitioner for grave misconduct in the
performance of official duty, but the same was dismissed for lack of interest on the part of the complainant. Another administrative
case was filed before the Office of the Ombudsman, but the same was likewise dismissed.[29]

Petitioners insistence on her acquittal of the crime of robbery with intimidation hinges on the alleged absence of the elements
of the crime. She specifically questions the Sandiganbayans conclusion that she employed intimidation in order to extort P100,000.00
from R&R. Petitioner strongly doubts that the threat of confiscation of the subject logs created fear in the mind of R&R or its
employees. Absent such element, says the petitioner, her exoneration is clearly indicated. [30]

We do not agree with the petitioner.

In appeals to this Court from the Sandiganbayan, only questions of law may be raised, not issues of fact. The factual findings
of the Sandiganbayan are binding upon this Court. [31] The Supreme Court should not be burdened with the task of re-examining the
evidence presented during the trial of the case. This rule, however, admits of exceptions, to wit: 1) when the conclusion is a finding
grounded entirely on speculation, surmise or conjectures; 2) the inference made is manifestly mistaken; 3) there is grave abuse of
discretion on the part of the lower court or agency; 4) the judgment is based on a misapprehension of facts; 5) said findings of fact are
conclusions without citation of specific evidence on which they are based; and 6) the findings of fact of the Sandiganbayan are
premised on an absence of evidence on record.[32] However, we find no reason to disturb the factual findings of the Sandiganbayan,
as none of these exceptions is present in this case.

Petitioner was charged with robbery defined and penalized under Articles 293 [33] and 294(5)[34] of the Revised Penal Code (RPC),
otherwise known as simple robbery. Simple robbery is committed by means of violence against or intimidation of persons. [35] The
elements of robbery as defined in Article 293 of the RPC are the following: a) that there is personal property belonging to another; b)
that there is unlawful taking of that property; c) that the taking is with intent to gain; and d) that there is violence against or
intimidation of persons or force upon things.[36]

Indeed, the prosecution adequately established the above elements.

As to what was taken, it is undisputed that petitioner demanded and eventually received from R&R P100,000.00, a personal property
belonging to the latter. The amount was placed inside a brown envelope and was given to petitioner while inside Maxs Restaurant in
EDSA, Caloocan City.

As to how the money was taken, it was proven that P100,000.00 was unlawfully taken by the petitioner from R&R, with intent to
gain and through intimidation. In robbery, there must be an unlawful taking or apoderamiento, which is defined as the taking of items
without the consent of the owner, or by means of violence against or intimidation of persons, or by using force upon things. [37] Taking
is considered complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the
same. In the instant case, it was adequately proven that petitioner received and took possession of the brown envelope containing
the money; she even placed her wallet and handkerchief inside the envelope. At that point, there was already taking.

As a public officer employed with the DENR, petitioner was tasked to implement forestry laws, rules and regulations. Specifically, she
had the power to make reports on forestry violations which could result in the eventual confiscation of logs if the possession thereof
could not be justified by the required documents; and the prosecution of violators thereof. Undoubtedly, petitioner could not demand
and eventually receive any amount from private persons as a consideration for the formers non-performance of her lawful task. More
so, in the instant case where the petitioner threatened the complainants with possible confiscation of the logs and prosecution if they
would not accede to her demand for P100,000.00.Under such circumstances, the eventual receipt of the said amount by the petitioner
makes the taking unlawful.

To constitute robbery, the taking should be accompanied by intent to gain. Intent to gain, or animus lucrandi, as an element of the
crime of robbery, is an internal act; hence, presumed from the unlawful taking of things. [38] Actual gain is irrelevant as the important
consideration is the intent to gain.[39] Having established that the amount of P100,000.00 was unlawfully taken by the petitioner from
R&R for her personal benefit, intent to gain was likewise proven.

Lastly, we agree with the Sandiganbayan that petitioner employed intimidation in order to obtain the amount of P100,000.00 from
R&R.

Intimidation is defined in Blacks Law Dictionary as unlawful coercion; extortion; duress; putting in fear. [40] In robbery with
intimidation of persons, the intimidation consists in causing or creating fear in the mind of a person or in bringing in a sense of mental
distress in view of a risk or evil that may be impending, real or imagined. Such fear of injury to person or property must continue to
operate in the mind of the victim at the time of the delivery of the money. [41]

Applying this principle to the pertinent facts of the instant case, it is noteworthy that: On September 25, 1992, petitioner discovered
the questioned logs and asked that the supporting documents be shown; on October 1, she formally demanded the submission of the
required documents; on October 7, she demanded payment of a particular sum of money while offering to fix the problem; on October
13, she made the final demand; and on October 14, the representatives of R&R parted with their P100,000.00. While it appears that
initially, petitioner only demanded the submission of the supporting documents to show that R&Rs possession of the subject logs was
legal, she agreed to talk about the matter outside her office. This circumstance alone makes her intentions highly suspect. The same
was confirmed when petitioner eventually demanded from R&R the payment of a particular sum of money, accompanied by threats
of prosecution and confiscation of the logs.
From the foregoing, and in light of the concept of intimidation as defined in various jurisprudence, we find and so hold that
the P100,000.00 grease money was taken by the petitioner from R&Rs representatives through intimidation. By using her position as
Senior Management Specialist of the DENR, petitioner succeeded in coercing the complainants to choose between two alternatives:
to part with their money, or suffer the burden and humiliation of prosecution and confiscation of the logs.

Indeed, this Court had, in a number of cases involving substantially the same factual milieu as in the present case, convicted the
accused of the crime of robbery with intimidation.These include the early cases of People v. Francisco[42] and United States v.
Sanchez,[43] and the more recent cases of Fortuna v. People[44] and Pablo v. People.[45]

In People v. Francisco, the accused, who was then a sanitary inspector in the Philippine Health Service, discovered during an inspection
of the merchandise in Sy Hams store that the lard was unfit for consumption. He then demanded from Sy Ham the payment of P2.00
with threats of prosecution and arrest. For fear of being arrested, prosecuted, and convicted, Sy Ham immediately paid the amount
demanded.

In United States v. Sanchez, two police officers demanded from a Chinese, who allegedly violated the Opium Law, P500.00,
accompanied by threats to take him before the proper authorities and have him prosecuted. For fear of being sent to prison for a long
term, the Chinese paid a negotiated amount of P150.00

In Fortuna v. People and Pablo v. People, three policemen frisked Diosdada and Mario Montecillo, and accused the latter of illegal
possession of a deadly weapon. The policemen threatened Mario that he would be brought to the police station where he would be
interrogated by the police, mauled by other prisoners and heckled by the press. The apprehending policemen took from
Mario P1,000.00. They likewise rummaged Diosdadas bag where they found and eventually pocketed P5,000.00. They further
demanded from Diosdada any piece of jewelry that could be pawned. Thereafter, the two were released by the policemen.

In all of the above cases, the Court was convinced that there was sufficient intimidation applied by the accused on the offended parties
inasmuch as the acts of the accused engendered fear in the minds of their victims and hindered the free exercise of their will.
As in the aforesaid cases, petitioner herein was a public officer who, in the performance of her official task, discovered the subject
logs which she claimed to be banned species. By reason of said discovery, she had the power to bring the offenders to the proper
authorities. As such public officer, she abused her authority and demanded from the offenders the payment of a particular sum of
money, accompanied by an assurance that the latter would no longer be prosecuted. Eventually, money was given to the petitioner.
We, therefore, find no reason to depart from the above conclusion.

We would like to stress that the Constitution guarantees that in all criminal prosecutions, the accused shall be presumed innocent
until the contrary is proved. This means proving the guilt of the accused beyond reasonable doubt. Reasonable doubt is present when,
after the comparison and consideration of all the evidence adduced, the minds of the judges are left in a condition that they cannot
say they feel an abiding conviction, a moral certainty, of the truth of the charge, a certainty that convinces and directs the
understanding, and satisfies the reason and judgment of those who are bound to act conscientiously upon it. [46] To be sure, proof
beyond reasonable doubt does not demand absolute certainty and the exclusion of all possibility of error. [47]

We find, however, that the Sandiganbayan failed to appreciate the aggravating circumstance of abuse of public position. [48] The fact
that petitioner was Senior Forest Management Specialist of the DENR situated her in a position to perpetrate the offense. It was on
account of petitioners authority that the complainants believed that they could be prosecuted and the subject logs confiscated unless
they gave her what she wanted. Consequently, we find that a modification of the penalty imposed by the Sandiganbayan is in order.

Article 294(5) of the RPC fixes the penalty for simple robbery at prision correccional in its maximum period to prision mayor in its
medium period, the range of which is from four (4) years, two (2) months and one (1) day to ten (10) years. Considering the aggravating
circumstance of abuse of public position, the penalty should be imposed in its maximum period; and applying the Indeterminate
Sentence Law, the same should likewise be the maximum term of the indeterminate penalty. The minimum term, on the other hand,
shall be taken from the penalty next lower in degree which is arresto mayor maximum to prision correccional medium in any of its
periods, the range of which is four (4) months and one (1) day to four (4) years and two (2) months. [49]

WHEREFORE, premises considered, the petition is DENIED. The Decision of the Sandiganbayan, dated July 26, 2001, and its Resolution
dated November 16, 2001 in Criminal Case No. 18257, are AFFIRMED WITH THE MODIFICATION that petitioner Zenaida V. Sazon is
sentenced to the indeterminate penalty of Two (2) Years, Ten (10) Months and Twenty-One (21) Days of prision correccional, as
minimum, to Eight (8) Years and Twenty-One (21) Days of prision mayor, as maximum.
SO ORDERED.

G.R. No. L-41008 October 23, 1934

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
ISIDORO T. POLICHER, defendant-appellant.

Jose V. Muaña for appellant.

Office of the Solicitor-General Hilado for appellee.

DIAZ, J.:

Isidoro T. Policher was charged with, and convicted of the complex crime of estafa through falsification of public documents in the
Court of First Instance of Lanao which sentenced him to ten years and one day of prision mayor with the corresponding accessories of
the law, to pay a fine of P1,000, and to indemnify Moros Somampot, Donato Marcos and Tindigan Dipatuan in the sums of P4, P16
and P16, respectively, with costs.

The information which gave rise to the action against said accused reads as follows:

That on or about and during the period intervening from may 20, 1928, to May 29, 1930, in the municipal district of
Kolambugan, Province of Lanao, Philippine Islands, and within the jurisdiction of this court, said accused, the then duly
appointed treasurer of said municipal district and as such was in charge and responsible, among other official duties, for the
issuance of cedula certificates in said municipal district of Kolambugan, voluntarily, unlawfully and feloniously, and with grave
abuse of his official position and with intent to gain and of prejudicing and defrauding Moros Somampot, Donato Marcos and
Tindigan Dipatuan, falsified cedula certificates G-Nos. 3844057, 3222523, 6843641, 3843629, 3844005, 3221650, 3221649,
3221752 and 3221753, by erasing the names written thereon of persons to whom said cedula certificates had originally been
issued so as to reissue them, and in fact he reissued them, in order to appropriate for himself, and in fact he voluntarily,
unlawfully and feloniously appropriated for his own use and benefit, the proceeds of this reissuance of the cedula certificates
in question, amounting to P36, to the damage of said Moros Somampot, Tindigan Dipatuan, and Donato Marcos in the sums
of P4, P16 and P16, respectively. Contrary to law.

The accused appealed from the judgment rendered against him, assigning in his brief three alleged errors as committed by the trial
court, to wit:

1. The lower court erred in not holding that all the webs of circumstances leading to the prosecution of crime were
deliberately planned and ingeniously manipulated by the enemies of the accused to satisfy their lust of vengeance.

2. The lower court erred in giving credit to the self-contradicting and perverted testimony of the three more witnesses for
the prosecution.

3. The lower court erred in convicting the defendant- appellant of the crime of estafa thru falsification of public documents
beyond reasonable doubt and in not absolving him from all criminal responsibilities.

The evidence shows that the appellant was the municipal treasurer of the municipal district of Kolambugan, of February 27, 1927, the
date on which the witness for the prosecution, Felix Jalasan, entered the service as clerk under said appellant. Prior to the date above
stated, he had acted as municipal treasurer of other municipalities, and in 1933, when this case was tried, he had already been in the
Government service as municipal treasurer for about eleven years.

In May, 1928, the appellant, in his own handwriting, issued cedulas Nos. 3221649 (Exhibit F-1), 3221650 (Exhibit G-1), 3221752 (Exhibit
H-1) and 3221753 (Exhibit I-1), stated in the information, the first two in favor of Mamoncar Bomantay and the last two in favor of
Macaraub Bangor. In 1929 said appellant's office issued cedulas Nos. 3844057 (Exhibit A-1), 3222523 (Exhibit B-1), 3843641 (Exhibit
C-1), 3843629 (Exhibit D-1) and 3844005 (Exhibit E-1), also stated in the information, in favor Daniel Calumba, Ditual, Balinting Alongan,
Ditual Macaagan and Salangan, respectively.

All the blanks of said first four cedulas (F-1, G-1, H-1, and I-1) were filled in by the appellant himself in his own handwriting, and those
of the last five (A-1, B-1, C-1, D-1 and E-1), intended for entry of the personal record of the taxpayers, all with respect to Exhibit A-1
and partially with respect to the rest, or B-1, C-1, D-1 and E-1, were filled in by Felix Jalasan, according to the stub of the first, Exhibit
A-1, and the duplicates of the others, Exhibits B-1, C-1, D-1 and E-1. The only spaces of these cedulas which could be filled in then were
those intended for the names, said witness Jalasan having written therein those of Ditual, Balingting Alongan, Ditual Macaagan and
Salangan, respectively, because they were the only data then available.

Instead of delivering the nine cedulas in question to the taxpayers who had paid for them, they were retained in the appellant's office
on the ground that the interested parties had not furnished all the necessary data relative to their personal circumstances. While
waiting for said data, the cedulas in question together with others were in the custody of clerk Felix Jalasan. At this juncture, the
appellant summoned Moros Somampot, Tindigan Dipatuan and Donato Marcos to appear before him in order to demand of them the
payment of their back cedulas. As soon as said three Moros had arrived at the appellant's office, he bade them enter and forthwith
asked his clerk to deliver to him the cedulas in question, that is, Exhibits A-1 to I-1 which was stated, were already partially filled out
with the date appearing on their respective stubs and duplicates, Exhibits A, B, C, D, E, F, G, H and I, and which were theretofore in the
custody of said clerk. In compliance with the appellant's requirement said Moros then delivered to him, the first P4, the second P8
and the third P24, to complete the sums which they had paid him for their cedulas on former occasions. The various sums of P4 stated
in cedulas Exhibits A-1 to I-1, amounting to P36, and which were paid by the persons in whose favor said cedulas had originally been
issued, were duly deposited in the safe and entered in the official records of the appellant (Exhibits A-2, B-2, C-2, D-2, E-2, F-2, G-2, H-
2 and I-2); but those paid to him by Moros Somampot, Tindigan Dipatuan and Donato Marcos when he delivered to them the
certificates which were already altered as they are at present, were not deposited in the safe and do not appear to have been entered
by the appellant in any of his records, thus leading to the logical conclusion that he misappropriated them.

The names on the cedulas in question showing that they were issued in favor of said Moros Somampot, Tindigan Dipatuan and Donato
Marcos, and not to Daniel Calumba, Ditual, Balinting Alongan, Ditual Macaagan and Salangan, are in the appellant's handwriting, if
credit is to be given to the testimony of Miguel Burdeos, chief clerk of the provincial auditor, who examined the accounts and
investigated the appellant, and that of Felix Jalasan, confidential clerk of said appellant. Both witnesses who are familiar with the
appellant's penmanship by reason of their long association with him, categorically affirmed that the alterations appearing on the
cedulas in question are in the appellant's handwriting. The testimony of said two witnesses and that of said three Moros, who claimed
to have delivered to the appellant the sums required of them and received said cedulas from said appellant's own hands, jointly prove
that it was the appellant and no other person who made the alterations in the cedula certificates in question.

However, the appellant contends that it was not he who committed the falsification or received the money which the three Moros
claimed to have delivered to him. In support of his contention, he insinuates in his brief that Felix Jalasan might have made the
alterations imputed to him and that said witness did so serving as a tool for the vengeance of chief of police Salvador C. Rabaya who
harbored a grudge against him because he had once deducted from Rabaya's salary the payment of a certain municipal tax due from
the latter's barber shop in Kolambugan, Lanao. His testimony, however, is insufficient to destroy that of the five witnesses for the
prosecution particularly when the motive attributed by him to said chief of police Salvador C. Rabaya is not of such nature that it may
be considered sufficient to have induced Rabaya to plot against him in connivance with the witnesses for the prosecution named
Somampot, Tindigan Dipatuan, Donato Marcos, Felix Jalasan and Miguel Burdeos. Furthermore, there is absolutely nothing of record
to show that there had actually been a plot against him.

Another argument used by the appellant in support of his contention that Felix Jalasan might have been the author of the falsification
is that the handwriting on said cedulas is similar to his own handwriting and also to that of Jalasan. Acting under this supposition, the
appellant, after the prosecution had presented its evidence, asked the lower court to postpone the continuation of the trial at least
until the following session of said court in order to have the opportunity to engage the services of a handwriting expert from Manila,
who might be able to determine the truth of his contention. The lower court justly denied his petition, first, because he did not then
assure that if the handwriting expert were to testify he would declare that the alterations appearing on the cedulas in question were
made by Jalasan; second, because when he entered the trial, he failed to reserve the right later to present a handwriting expert to
prove that the alterations on the cedulas in question were not in his own handwriting; and third, because although he then knew that
the crime with which he was charged was falsification of the cedulas stated in the information, from October 5, 1932, when the
information was filed, or nearly one year prior to the holding of the trial, he neither made any effort to look for a handwriting expert
nor thought of setting up the defense alleged by him later in his brief. Therefore, the belief that the appellant's purpose in asking for
the suspension of the trial until the following session of the court was merely to delay the action, as stated by the fiscal at the trial, is
not unfounded.

On the other hand, there is absolutely no reason to believe that Felix Jalasan has distorted the facts in his testimony inasmuch as he
felt nothing but gratitude towards the appellant because the latter not only gave him the job, as the appellant himself stated at the
trial, but also allowed him to continue in the service notwithstanding his lack of efficiency during his first years of service until he (the
appellant) became pleased to retain him upon observing his progress and diligence. Furthermore, it is not Felix Jalasan's testimony or
that of Miguel Burdeos alone that points to the appellant as the author of the falsification, but also that of the three Moros aforestated.
It is the testimony of said five witnesses, corroborated as it is by the aforesaid documentary evidence of record, that denounces him
and proves his direct participation in the commission of the crime of falsification.

After it has been proven that the appellant is guilty of falsification and inasmuch as only one information had been filed against him,
(1) for how many crimes of said nature may he be held liable? (2) Should he also be held liable for the crime of estafa or that of
malversation, having appropriated his collection from said three Moros instead of depositing it in the Government coffers?

These are questions which necessarily arise after knowing the facts just stated.

In the opinion of this court, it is not the said three Moros (Somampot, Tindigan Dipatuan and Donato Marcos) who suffered the damage
resulting from the falsification and the appropriation by the appellant of the money collected from them, but the Government itself
because inasmuch as said Moros knew that the appellant was the public official designated by law and by the constituted authorities
to collect cedula taxes, having done so for a long time, and furthermore, inasmuch as they knew that they were obliged to pay said
taxes, it should be stated that they were only acting with absolute propriety when they delivered to said appellant the sums which he
demanded of them in payment of their respective cedulas corresponding to former years. For the same reason that they had no
intervention in the administration of the appellant's office, it was not and it is not just to require that they should have made sure that
their money paid for said concept has been deposited in the safe by the appellant and furthermore entered by him in his corresponding
records. When a public official, whose official duty is to collect taxes, receives a payment in said concept, he makes himself directly
accountable to the Government for the money so collected and received inasmuch as thereafter said money acquires the character
or forms part of the public funds and the tax on account of which said payment was made should also thenceforth be considered paid
by the taxpayer without further responsibility on his part. To hold the taxpayer responsible for the misappropriation of the money
collected for taxes due, by the public official who has collected and received payment, would be not only unreasonable but also highly
unjust. Therefore, the crime committed by the appellant is not the complex crime of estafa through falsification but nine falsifications
of official or public documents, as are the cedulas, and malversation.

It is true that only one action was instituted and only one information filed against the appellant but it is none the less true that in said
information he was expressly charged with nine acts of falsification of public documents by reason of the issuance of nine different
cedulas. In the case of United States vs. Balaba (37 Phil., 260), this court held that there is nothing to prevent the imposition upon the
accused of as many penalties as there are offenses imputed to him and proven at the trial, if, as in this case, it satisfactorily appears
that he has consented to the action wherein said crimes were imputed to him by failing to interpose on time, although he could have
done so, a demurrer on the ground that the information charged him with more than one offense. The right to be charged with not
more than one offense in an information may be waived, the only exceptions to this rule being the cases where one of the offenses
charged has been a necessary means for committing the other and where both have been the result of a single act, (Article 89 of the
old Penal Code; article 48 of the Revised Penal Code.)

As to the second question, this court is of the opinion that the appellant cannot be declared guilty of estafa because the proven facts
show, for the reasons already stated, that the crime committed was not estafa but malversation, which is a crime entirely different
from the former and for the existence of which some elements not belonging to estafa are necessary. The appellant, upon entering
trial, was undoubtedly unprepared to defend himself from the charges for malversation and falsification except only from falsification
and estafa, and it would be taking him by surprise if he were to be sentenced also for malversation. It has been stated during the
consideration of this case that under the allegations contained in the information, the appellant may also be declared guilty of
malversation inasmuch as it has been proven that he appropriated his collection from the aforesaid three Moros instead of depositing
it in the safe. In the information, however, there is no allegation to justify the inference, without resorting to the proven facts, that it
is the Government that sustained the injury resulting from the appellant's crime. What the information clearly expresses and states is
that it was the three Moros in question who sustained the injury. Therefore the various acts of malversation committed by the
appellant should not be taken into consideration in this case because he was not charged therewith.

Inasmuch as the falsifications proven at the trial took place long before the Revised Penal Code went into effect, the law applicable to
the case is undoubtedly the old Penal Code. Under the provisions of article 88 of said Code, a penalty in excess of three-fold the most
severe penalty which the appellant deserves for one of said crimes cannot be imposed upon him for said nine crimes of falsification
of public documents. According to said Code, as amended by Act No. 2712, each of said acts of falsification is punishable with prision
mayor and a fine of from 250 to 12,500pesetas. In view whereof, and taking into consideration the fact that no modifying circumstance
of any kind has been proven, the penalty which should be imposed for one of said crimes is eight years and one day of prision
mayor which is the minimum of the medium period of prision mayor plus a fine of 250 pesetas.

Wherefore, by amending the appealed judgment, the appellant is hereby sentenced, for the nine crimes with which he was charged
and convicted, to twenty-four years and three days of prision, which is threefold eight years and one day of prision mayor, and to pay
a fine of P150, with costs. In view, however, of the provisions of Act No. 4103, the minimum of said penalty of twenty-four years and
three days of prision is fixed at six years. So ordered.

Street, Malcolm, Hull, Butte and Goddard, JJ., concur.

FIDEL T. SALAMERA, petitioner, vs. SANDIGANBAYAN, FIRST DIVISION, respondent.

DECISION
PARDO, J.:

The case is an appeal via certiorari taken by petitioner from a decision of the Sandiganbayan and its resolution convicting him of
malversation of public property defined and penalized in Article 217 in relation to Article 222 of the Revised Penal Code, and
appreciating the mitigating circumstance of full restitution, imposing upon him the indeterminate sentence of two (2) years four (4)
months and one (1) day of prision correccional, as minimum, to six (6) years and one (1) day of prision mayor, as maximum; the
penalty of perpetual special disqualification, and a fine of P5,000.00, the value of the .38 Cal. Smith & Wesson Revolver, with Serial
No. 879886.
We reverse.
The facts may be related as follows:
On February 2, 1988, petitioner was elected to and assumed the position of mayor of the municipality of Casiguran, province of
Aurora.
Later that month, he received from Casiguran Barangay Captain [1] Antonio Benavidez one .38 Caliber Smith & Wesson Revolver,
with Serial No. 879886. The gun was owned by and licensed to Ponciano Benavidez, an uncle of Antonio, who mortgaged it to
him. Petitioner placed the gun in an attache case.
After about a week, petitioner together with his security men, went to Manila, and brought with them the attache case with the
gun in it. On their return to the province, their car was stopped at a spot checkpoint in Quezon City, where Pat. Alfredo B. Villanueva
of the Quezon City Police saw the revolver. On petitioners instruction, his security men surrendered the gun to police officer
Villanueva.
Back in the municipality of Casiguran, Ponciano Benavidez, the licensed owner of the gun claimed it from petitioner. The latter
informed Ponciano that the gun was confiscated by the Quezon City Police.
On September 30, 1988, Ponciano Benavidez filed with the office of the Provincial Prosecutor of Aurora a complaint for theft
against petitioner and Antonio Benavidez.
On December 13, 1988, Ponciano Benavidez filed with the Department of Local Government, an administrative complaint against
petitioner for abuse of authority, ignorance of the law and conduct unbecoming of a public servant.
On January 20, 1989, the Provincial Prosecutor of Aurora dismissed the case for theft.
On April 6, 1989, complainant Ponciano Benavidez filed a complaint for theft against petitioner with the Office of the Ombudsman
in Manila.
On August 21, 1990, during the investigation of the administrative case by the Sangguniang Panlalawigan of Aurora, complainant
Ponciano Benavidez executed an affidavit of desistance acknowledging that petitioner had paid the value of the gun, and withdrawing
the administrative case and the criminal case he filed against petitioner with the Ombudsman.
On August 22, 1990, the Sangguniang Panlalawigan approved a resolution dismissing the administrative case against petitioner.
On March 9, 1992, the Ombudsman approved the filing by Special Prosecution Officer Prospero G. Pelayo of an information
against petitioner for malversation of public funds, which was duly filed on March 12, 1992, with the Sandiganbayan, Manila.
On March 30, 1992, the Sandiganbayan issued a warrant of arrest. On March 30, 1992, petitioner posted a cash bail
of P20,000.00, which he deposited with the provincial treasurer of Aurora, duly approved byRegional Trial Court Judge Filemon N. Tan
of Baler, Aurora.[2]
Upon arraignment on June 1, 1992, before the Sandiganbayan, First Division, petitioner entered a plea of not guilty, and
accordingly, the court scheduled the case for pre-trial conference.
Meantime, on or about August 14, 1992, petitioner was able to contact Pat. Villanueva in Camp Karingal, Quezon City. The latter
said that he returned the gun to Patrolman Orgas, one of petitioner's security men on the very next day after he had confiscated
it. Unfortunately, Pat. Orgas did not inform petitioner about the recovery of the gun, and, at the time Villanueva so informed
petitioner, Pat. Orgas had died.
At the pre-trial conference held on August 28, 1992, the prosecution and the accused (petitioner herein) assisted by counsel de
parte, entered into a stipulation of facts signed by them, as follows:
1. At all times relevant to this case, the accused was the Mayor of the Municipality of Casiguran, Aurora;
2. That in the exercise of his functions as Mayor, the accused had the occasion to confiscate one .38 caliber Smith & Wesson
revolver with Serial No. 879886 from Barangay Captain Antonio Benavidez;
3. This weapon was actually owned by Ponciano Benavidez, the value of which the parties have not agreed upon;
4. That the accused confiscated this weapon in the performance of his official functions and was, therefore, in custody
thereof in his capacity as such;
 5. That demand was made from the accused by Ponciano Benavidez sometime in June of 1988 to produce the above-
mentioned firearm but the accused failed to do so;
6. That at a subsequent time, the accused and Ponciano Benavidez went to the offices of the Quezon City Police Department
in search of this weapon;
7. That there has been restitution of the value of the firearm by the accused to the complaining witness Ponciano Benavidez
although there is disagreement as to the amount of the restitution;
8. That the following affidavits were executed:

a. By complaining witness Ponciano Benavidez indicating his desistance from further prosecution thereof for reasons stated
therein;

b. By Alfredo Villanueva of the Quezon City Police Department purporting to describe the circumstances under which he
allegedly confiscated the weapon in question from the accused Mayor.

Further to the above stipulations, the Government now marks the following exhibit which is admitted by the accused:

Exhibit A - a xerox copy of the License to Carry Firearm No. 0188490, issued by Necesitas Katigbak of the Firearm and Explosives Unit,
to Ponciano Benavidez involving .38 caliber Smith & Wesson revolver with SN 879886.

The accused for his part has marked the following exhibits:

Exhibit 1 - The Order of the Fiscal dated January 20, 1989, dismissing the charge of Theft, which is Annex 1 to the Supplemental
Affidavit;

Exhibit 2 - The administrative complaint filed by the complaining witness dated December 13, 1988, which is Annex 2 to the
Supplemental Affidavit;

Exhibit 3 - The Complaint for the filing of the case before the Ombudsman on April 6, 1989, which is Annex 3 to the Supplemental
Affidavit;

Exhibit 4 - The investigation before the Sangguniang Panlalawigan dated August 21, 1990 at Baler, Aurora, wherein the owner of the
gun submitted his affidavit of desistance and admitting therein that he was paid for the loss of the gun, which is Annex 4 to the
Supplemental Affidavit;

Exhibit 5 - the Affidavit of Desistance executed by the owner of the gun dated August 21, 1990, marked as Annex 5 to the Supplemental
Affidavit, wherein the owner of the gun admitted that he verified the loss of the gun to be true and also admitted that the equivalent
amount in cash and in kind for the .38 caliber revolver was paid to him, for which he promised to dismiss the criminal case and the
administrative case.

Exhibit 6 - the Minutes of the Sangguniang Panlalawigan of Aurora dated August 22, 1990, which decided to dismiss the administrative
case, which is marked as Annex 6 to the Supplemental Affidavit;

Exhibit 7 - the Resolution of the Investigating Fiscal for the Ombudsman dated February 24, 1992, which is marked as Annex 7 to the
Supplemental Affidavit;

Exhibit 8 - the Resolution of the Ombudsman, which is marked as Annex 8 to the Supplemental Affidavit;

Exhibit 9 - a copy of the Order of Arrest issued by the Sandiganbayan, marked as Annex 9 to the Supplemental Affidavit;

Exhibit 10 - the payment of the Bond for the provisional release of the accused, marked as Annex 10 to the Supplemental Affidavit;

Exhibit 11 - the Joint Affidavit of the Chairman of the Sangguniang Panlalawigan and a certain Angelito Salamera stating that they were
present when payment was made for the gun to the owner, which is marked as Annex "11 to the Supplemental Affidavit;
Exhibit 12 - the Affidavit executed by Alfonso Villanueva dated August 14, 1992, wherein he admitted that he had confiscated the gun
at a checkpoint in Quezon City, which is marked as Annex 12 to the Supplemental Affidavit;

Exhibit 13 - the Affidavit executed by Antonio Benavidez dated July 30, 1989, which is marked as Annex 13 to the Supplemental
Affidavit.

On June 30, 1993, the prosecution formally presented as its evidence Exhibit "A" [3] and upon the admission thereof, rested its
case.
On the other hand, the defense presented two (2) witnesses including petitioner.
After the testimony of the witnesses on July 21, 1993, the court gave the defense counsel ten (10) days to formally offer his
evidence in writing. In time, the defense formally offered its exhibits, and on September 6, 1993, the court admitted all exhibits except
Exhibits 11 and 13, which were rejected for being hearsay.
On February 17, 1995, more than a year after the case was submitted for decision, the Sandiganbayan promulgated its decision,
the decretal portion of which is narrated in the opening paragraph of this opinion.
On March 3, 1995, petitioner filed a motion for reconsideration of the decision; however, on July 5, 1995, the Sandiganbayan
denied the motion.
Hence, this appeal.
On October 4, 1995, the Court required respondent to file its comment on the petition. On January 4, 1996, the Office of the
Special Prosecutor filed its comment on the petition for review. On January 30, 1996, the Solicitor General also filed his comment.
We give due course to the petition.
To begin with, petitioner is charged with malversation under Article 217 in relation to Article 222 of the Revised Penal Code,
providing as follows:

Article 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 of 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 200 pesos but does not
exceed 6,000 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 6,000 pesos but is less than 12,000 pesos.

4. The penalty of reclusion temporal in its medium and maximum periods, if the amount involved is more than 12,000 pesos but is less
than 22,000 pesos. If the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period to reclusion
perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine equal to the
amount of the funds malversed or equal to the total value of the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any
duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal uses. (As amended
by Rep. Act No. 1060, approved June 12, 1954).

Article 222. Officers included in the preceding provisions. The provisions of this chapter shall apply to private individuals who, in any
capacity whatever, have charge of any insular, provincial or municipal funds, revenues, or property and to any administrator or
depository of funds or property attached, seized or deposited by public authority, even if such property belongs to a private individual.
 One essential element of the crime of malversation is that a public officer must take public funds, money or property, and
misappropriate it to his own private use or benefit. There must be asportation of public funds or property, akin to the taking of
another's property in theft. The funds, money or property taken must be public funds or private funds impressed with public attributes
or character for which the public officer is accountable.
In this case, Antonio Benavidez voluntarily turned over the gun, a .38 caliber Smith & Wesson revolver, to petitioner mayor of
the town of Casiguran, Aurora. Antonio surrendered the gun to the mayor. The gun was duly licensed. It was not seized or
confiscated. Antonio obtained possession of the gun from Ponciano Benavidez, an uncle of his, who was the owner and licensee of
the gun. Ponciano mortgaged it to Antonio.
The elements of malversation, essential for the conviction of an accused, under the above penal provisions are that

(a) the offender is a public officer;

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

(c) the funds or property involved are public funds or property for which he is accountable; and

(d) he has appropriated, taken or misappropriated, or has consented to, or through abandonment or negligence permitted, the taking
by another person of, such funds or property.[4]

The question may be asked: Did Antonio's surrender of the gun to petitioner mayor invest the gun with public character sufficient
to consider the gun as public property for which the mayor is accountable? We believe not. There was no reason to surrender or
confiscate the gun. It was duly licensed to Ponciano Benavidez. The license is not transferable. Antonio could not validly possess the
gun. He should have returned the gun to Ponciano, the licensed owner or surrendered it to the local police or to the Constabulary
Provincial Commander. By turning over the gun to petitioner mayor, the gun did not become public property because it was not
intended for public use or purpose nor was it lawfully seized. The gun continued to be private property, that is why the gun owner
rightfully asked for its return to him, not to be turned over to the public coffer or treasury. Petitioner's failure to return the gun after
demand by the private owner did not constitute a prima facie evidence of malversation. The property was private and the one who
demanded its return was a private person, not a person in authority. The presumption of conversion will not apply.
A respected author in Criminal Law wrote Malversation can only be committed by a public official who has charge of public funds
or property by virtue of his official position. A public official not responsible for public funds or property and without authority to
safeguard the same can not be convicted of malversation.[5]
What is more, the gun was confiscated by a police officer at a checkpoint in Quezon City. The policeman should have turned over
the confiscated gun to the Constabulary Firearm and Explosive Unit, in Camp Crame, Quezon City. Instead, he returned the gun to a
security aide of petitioner mayor, as a favor to the mayor. The security aide died in the meantime, and, apparently, the gun got
lost. Assuming that the loss was due to petitioner's fault or negligence, he is not criminally liable for malversation through negligence
because there was no evidence of conversion of public funds or property to the use or benefit of the accused.The legal presumption
of malversation created by a demand for restitution of public funds or property is not applicable because the gun was private property
and a public officer entitled to its possession did not make the demand for its return.
The presumption takes the place of affirmative proofs showing the actual conversion. It obviates the necessity of proving acts of
conversion; a thing most extremely difficult to do. If in a particular case a demand was made upon an accountable public official to
produce the funds in his custody and he failed to do so, the presumption thereby arising would render unnecessary further proof of
conversion. The disappearance of public funds in the hands of the accountable public officer is prima facie evidence of its
conversion.[6] Here, there is no presumption of conversion nor evidence of actual conversion.
Nevertheless, petitioner made restitution of the value of the gun to the private owner, Ponciano Benavidez. Obviously, petitioner
did not malverse the gun by dolo or culpa to his private use or benefit.
One more point. Admittedly, there was no evidence submitted to the court of the value of the gun to enable the court to fix the
penalty to be imposed on the accused. Assuming that petitioner malversed the gun, in malversation, the penalty for the offense is
dependent on the value of the public funds, money or property malversed. In this case, the Sandiganbayan did not base the penalty
on the minimum value of the gun in the absence of evidence of its true worth. It took judicial notice of its market value and estimated
its "reasonable value" at P5,000.00. This is a grievous error.
The Sandiganbayan could not take judicial notice of the value of the gun. It must be duly proved in evidence as a fact. The court
can not take judicial notice of a disputed fact. The court may take judicial notice of matters of public knowledge, or which are capable
of unquestionable demonstration, or ought to be known to judges because of their judicial functions. [7] Otherwise, the court must
receive evidence of disputed facts with notice to the parties.[8] This is an innovation introduced in the Revised Rules of Evidence the
Supreme Court adopted on July 1, 1989, which should not be unknown to the lower courts.[9] The new rule of evidence governs this
case, since it was decided in 1995, six years after its effectivity.
WHEREFORE, the Court hereby REVERSES the appealed decision and resolution of the Sandiganbayan in its Criminal Case No.
17563, and ACQUITS the accused Fidel Salamera y Torres, with costs de oficio.
The Court orders the Sandiganbayan to forthwith cancel the cash bail of the accused, and immediately reimburse the amount to
him.
SO ORDERED.

MARINO B. ICDANG, G.R. No. 185960

Petitioner,

Present:

CORONA, C.J.,

Chairperson,

- versus - LEONARDO-DE CASTRO,

BERSAMIN,

DEL CASTILLO, and

VILLARAMA, JR., JJ.

SANDIGANBAYAN (Second Division) and PEOPLE Promulgated:

OF THE PHILIPPINES,

Respondents.
January 25, 2012

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

VILLARAMA, JR., J.:

Before us is a petition for certiorari under Rule 65 seeking to reverse and set aside the Decision1 dated May 26, 2008 and
Resolution2 dated November 18, 2008 of the Sandiganbayan (SB) (Second Division) which convicted petitioner of the crime of
malversation of public funds.

The factual antecedents:

Petitioner Marino B. Icdang, at the time of the transactions subject of this controversy, was the Regional Director of the Office for
Southern Cultural Communities (OSCC) Region XII in Cotabato City.

On January 19, 1998, a Special Audit Team was formed by the Commission on Audit (COA) Regional Office XII, Cotabato City pursuant
to COA Regional Office Order No. 98-103 to conduct comprehensive audit on the 1996 funds for livelihood projects of the OSCC-Region
XII. Hadji Rashid A. Mudag was designated as team leader, with Jose Mercado, Myrla Fermin and Evelyn Macala as members.

In its report submitted to the COA Regional Director, the audit team noted that petitioner was granted cash advances which remained
unliquidated. In the cash examination conducted by the team on March 10, 1998, it was discovered that petitioner had a shortage
of P219,392.75. Out of the total amount of P920,933.00 released in September 1996 to their office under sub-allotment advice No.
COT-043, to cover the implementation of various socio-economic projects for the cultural communities of the region, cash advances
amounting to P407,000.00 were granted from October 1, 1996 to February 5, 1997 to officials and employees including petitioner. Per
records, it was noted that P297,392.75 of these cash advances remained unliquidated as of December 31, 1997. 4

Petitioner never denied that he received a total of P196,000.00 evidenced by disbursement vouchers and checks payable to him, as
follows:

DV No. Check Date Purpose Amount

No.

0988 893433 10/01/96 Initial funding for the Ancestral P50,000.00

Domain Development Program

0989 893432 10/01/96 Establishment of ICC- IAD 50,000.00

1150 916539 11/05/96 Support to Cooperative 6,000.00

0987 893429 10/01/96 Adult Literacy Program 60,000.00

0986 893430 10/01/96 Child Care Development Program 30,000.005

In addition, per the Schedule of Cash Advance Intended for Livelihood Projects, 6 the following amounts were also for petitioner’s
account:

Check No. Date Purpose Amount

xxxx

893633 11/15/96 Operationalization of Tribal 11,000.00

Cooperative

893768 12/13/96 Fishpen Development Program 10,000.00

893788 12/20/96 Operationalization of Tribal 5,000.00

Cooperative

916634 02/05/97 Ancestral Domain Development 10,000.00

Program

[TOTAL CASH ADVANCES - P]232,000.00

In the Audit Observation Memorandum No. 97-001 (March 18, 1998) sent by the COA Region XII to the OSCC-Region XII reflecting the
findings of the Special Audit Team, it was also disclosed that: (1) Funds intended for programs for Ancestral Domain Claim Development
and to support tribal cooperatives, were cash advanced, but the proposed projects were not implemented by the OSCC-Region XII; (2)
No official cashbooks are maintained to record cash advances and disbursements from the 1996 funds allocated for livelihood projects;
and (3) Out of the total P920,933.00 allocated for 1996 livelihood projects, the amount of P445,892.80 was disbursed leaving a balance
of P475,040.20; however, final trial balance as of December 31, 1996 showed that the office has exhausted the allocated funds for the
whole year; the utilization of the P475,040.20 could not be explained by the Accountant so that it may be concluded that such was
misappropriated. Petitioner indicated his comments on the said memorandum by requesting for extension to restitute the amount
of P306,412.75 (which included the P67,000.00 cash shortage of another OSCC-Region XII official, Ma. Teresa A. Somorostro), and
explaining that the P475,040.20 was not misappropriated as evidenced by their own financial report and re-statement of allotment
and obligation for the month ending December 31, 1996. 7

From the field interviews conducted by the audit team, it was also gathered that the intended projects covered by the cash advances
were never implemented, such as the proposed Children Development Project in Bgy. Matila; adult literacy program in Cotabato;
operationalization of tribal cooperative in Bgy. Bantagan, Sultan Kudarat; and establishment of ICC-IAD in Magpet, Cotabato where a
complaint was made to the effect that the OSCC-Region XII office allegedly upon receipt of funds prepares a project for implementation
which is different from that project proposal submitted by the project officer. Supposedly, there was likewise no support or assistance
given by the OSCC-Region XII to the activities of the Provincial Special Task Force on Ancestral Domain for the indigenous people of
Columbio, Sultan Kudarat, and to Bgys. Salumping, Municipality of Esperanza, President Roxas, and Matrilala. 8 And as already
mentioned, the audit team discovered that the accountable officers of OSCC-Region XII failed to maintain the official cashbook so that
there were no recording of transactions whenever a cash advance was granted; only subsidiary ledgers were used by the accounting
section.

From the P232,000.00 accountabilities of petitioner, the COA deducted the following: P10,000.00 covered by acknowledgment receipt
by A. Anas; various cash invoices in the amount of P2,197.25; and Reimbursement Expense Receipts (RERs) in the amount of P410.00.
After the cash examination, petitioner was still found short of P219,392.75.9 Consequently, a demand letter was sent by the COA for
petitioner to immediately produce the missing funds. In his letter-reply dated March 19, 1998, petitioner requested for one-week
extension to comply with the directive.10

However, the one-week period lapsed without compliance having been made by petitioner. Hence, the audit team recommended the
initiation of administrative and criminal charges against him, as well as Ms. Somorostro, Chief of the Socio-Cultural Development
Concerns Division of OSCC-Region XII.

On September 21, 2000, the Office of the Ombudsman found probable cause against petitioner and Ms. Somorostro for violation of
Art. 217 of the Revised Penal Code, as amended, and Section 3(e) of Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act).

The Amended Information charging petitioner with the crime of Malversation of Public Funds (Criminal Case No. 26327) reads:
That during the period from October 1996 to February 1997 in Cotabato City, Philippines and within the
jurisdiction of this Honorable Court, accused Marino B. Icdang, a public officer being then the Regional Director of
the Office for Southern Communities (OSCC), Region XII, Cotabato City and as such is accountable officer for the
public fund received by him that were intended for the socio-economic and cultural development projects of the
OSCC Region XII, did then and there willfully, unlawfully and feloniously take[,] misappropriate, embezzle and
convert for his own personal use and benefit from the said fund the aggregate amount of TWO HUNDRED NINETEEN
THOUSAND THREE HUNDRED NINETY-TWO PESOS AND 75/100 (P219,392.75) to the damage and prejudice of the
government in the aforesaid sum.

CONTRARY TO LAW.11

Petitioner was likewise charged with violation of Section 3(e) of R.A. No. 3019 (Criminal Case No. 26328).

The lone witness for the prosecution was Hadji Rashid A. Mudag, State Auditor IV of COA Region XII. He presented vouchers which
they were able to gather during the cash examination conducted on March 10, 1998, which showed cash advances granted to
petitioner, and in addition other cash advances also received by petitioner for which he remained accountable, duly certified by the
Accountant of OSCC-Region XII. Petitioner was notified of the cash shortage through the Audit Observation Memorandum No. 97-001
dated March 18, 1998 and was sent a demand letter after failing to account for the missing funds totalling P219,392.75.12

On cross-examination, witness Mudag admitted that while they secured written and signed certifications from project officers and
other individuals during the field interviews, these were not made under oath. The reports from Sultan Kudarat were just submitted
to him by his team members as he was not present during the actual interviews; he had gone only to Kidapawan, Cotabato and only
prepared the audit report. He also admitted that they no longer visited the project sites after being told by the project officers that
there was nothing to be inspected because no project was implemented. 13
On May 26, 2008, the SB’s Second Division rendered its decision convicting petitioner of malversation and acquitting him from violation
of Section 3(e) of R.A. No. 3019. The dispositive portion reads:

WHEREFORE, premises considered judgment is hereby rendered finding accused MARINO B. ICDANG Guilty
beyond reasonable doubt of Malversation of Public Funds or Property in Criminal Case No. 26327 and finding in his
favor the mitigating circumstance of voluntary surrender, is hereby sentenced to an indeterminate penalty of,
considering the amount involved, TEN (10) YEARS and ONE (1) DAY of PRISION MAYOR as minimum to EIGHTEEN
(18) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of Reclusion Temporal as maximum, to suffer the penalty of
perpetual special disqualification, and to pay a fine of P196,000.00 without subsidiary imprisonment in case of
insolvency.

He is also ordered to reimburse the government of the said amount.

In Criminal Case No. 26328, he is hereby ACQUITTED on the basis of reasonable doubt.

With cost against accused.

SO ORDERED.14

The SB ruled that the prosecution has established the guilt of petitioner beyond reasonable doubt for the crime of malversation of
public funds, the presumption from his failure to account for the cash shortage in the amount of P232,000.00 remains unrebutted. As
to the reasons given by petitioner for non-compliance with the COA demand, the SB held:

A careful perusal of Mr. Icdang’s Letter-Answer dated 19 March 1998 (Exh. “J”) to the demand letter and
directive issued by the COA clearly shows he was just asking for extension of time to comply with the demand letter.
There was virtually no denial on his part that he received the P232,000.00 amount earmarked for the various
government projects. His reasons were first, the committee tasked to prepare the liquidation of the cash advances
are still in the process of collecting all the documents pertinent to the disbursement of the project funds; and second,
the payees to the disbursements were still to be notified so that they will have to come to the office to affix their
signatures as payees to the liquidation vouchers.

This response is queer because as he gave the money to the supposed payees, he should have kept a ledger
to keep track of the same, considering that these are public funds. More importantly, Mr. Icdang was given ample
opportunity to dispute the COA findings that there was indeed a shortage. Instead of doing so, Mr. Icdang never
presented the promised proof of his innocence before this Court during the trial of this case. Thus, the prima facie
presumption under Article 217 of the Revised Penal Code, that the failure of a public officer to have duly forthcoming
the public funds with which he is chargeable, upon demand, shall be evidence that he put the missing funds for
personal uses, arises because first, there was no issue as to the accuracy, correctness and regularity of the audit
findings and second, the funds are missing.15

Petitioner filed a motion for reconsideration requesting that he be given another chance to present his evidence, stating that his
inability to attend the trial were due to financial constraints such that even when some of the scheduled hearings were sometimes
held in Davao City and Cebu City, he still failed to attend the same. However, the SB denied the motion noting that the decision has
become final and executory on June 10, 2008 for failure of petitioner to file a motion for reconsideration, or new trial, or appeal before
that date.

Hence, this petition anchored on the following grounds:

I. THE HONORABLE SANDIGANBAYAN COMMITTED GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK

OR EXCESS OF JURISDICTION WHEN IT RENDERED ITS JUDGMENT OF CONVICTION AGAINST PETITIONER DESPITE ITS
KNOWLEDGE THAT PETITIONER WAS NOT ABLE TO ADDUCE HIS EVIDENCE DUE TO VARIOUS CIRCUMSTANCES, THAT
 HE WAS NOT ASSISTED BY COUNSEL DURING THE PROMULGATION OF JUDGMENT; THE GROSS AND RECKLESS
NEGLIGENCE OF HIS FORMER COUNSEL IN FAILING TO ASSIST HIM DURING THE PROMULGATION; HIS FINANCIAL
AND ECONOMIC DISLOCATION WHICH MADE HIM UNABLE TO ATTEND THE SCHEDULED TRIALS IN MANILA, DAVAO
CITY AND CEBU CITY, HIS RESIDENCE BEING IN COTABATO, WHICH ALL CONSTITUTE A DENIAL OF HIS RIGHT TO BE
HEARD AND TO DUE PROCESS.

II. PETITIONER WAS LIKEWISE CLEARLY DENIED OF HIS RIGHT TO DUE PROCESS WHEN DUE TO THE RECKLESS
AND GROSS NEGLIGENCE OF HIS FORMER COUNSEL, THE LATTER FAILED TO FILE A MOTION FOR NEW TRIAL TO
REVERSE THE JUDGMENT OF CONVICTION BEFORE THE SANDIGANBAYAN OR TO FILE AN APPEAL TO THE SUPREME
COURT FROM THE ADVERSE JUDGMENT OF CONVICTION.

III. IT IS HIGHLY UNJUST, INEQUITABLE AND UNCONSCIONABLE FOR PETITIONER TO BE PRESENTLY

LANGUISHING IN JAIL WITHOUT HIS DEFENSE AGAINST THE CRIME CHARGED HAVING BEEN PRESENTED BEFORE THE
HONORABLE SANDIGANBAYAN AND APPRECIATED BY THE SAID COURT, AND BY THIS HONORABLE SUPREME COURT
IN CASE OF APPEAL FROM AN ADVERSE DECISION.

IV. REMAND OF THE INSTANT CASE TO THE COURT OF ORIGIN, OR TO THE HONORABLE SANDIGANBAYAN
SO THAT PETITIONER CAN PRESENT HIS EVIDENCE BEFORE SAID COURT, ASSISTED BY NEW COUNSEL, IS PROPER AND
JUSTIFIED, ESPECIALLY CONSIDERING THAT THE INSTANT CASE INVOLVES A CRIME OF ALLEGED MALVERSATION OF
PUBLIC FUNDS WHICH HE NEVER COMMITTED, AND INVOLVES A HIGHER PENALTY OR TERM OF IMPRISONMENT. 16

The petition must fail.

At the outset it must be emphasized that the special civil action of certiorari is not the proper remedy to challenge a judgment
conviction rendered by the SB. Petitioner should have filed a petition for review on certiorari under Rule 45.

Pursuant to Section 7 of Presidential Decree No. 1606,17 as amended by Republic Act No. 8249, decisions and final orders of the
Sandiganbayan shall be appealable to the Supreme Court by petition for review on certiorari raising pure questions of law in
accordance with Rule 45 of the Rules of Court. Section 1 of Rule 45 of the Rules of Court provides that “[a] party desiring to appeal by
certiorari from a judgment, final order or resolution of the x x x Sandiganbayan x x x whenever authorized by law, may file with the
Supreme Court a verified petition for review on certiorari. The petition x x x shall raise only questions of law, which must be distinctly
set forth.” Section 2 of Rule 45 likewise provides that the petition should be filed within the fifteen-day period from notice of the
judgment or final order or resolution, or of the denial of petitioner’s motion for reconsideration filed in due time after notice of
judgment.

As observed by the SB, the 15-day period of appeal, counted from the date of the promulgation of its decision on May 26, 2008, lapsed
on June 10, 2008, which rendered the same final and executory. Petitioner’s motion for reconsideration was thus filed 6 days late.
Petitioner’s resort to the present special civil action after failing to appeal within the fifteen-day reglementary period, cannot be done.
The special civil action of certiorari cannot be used as a substitute for an appeal which the petitioner already lost. 18

This Court has often enough reminded members of the bench and bar that a special civil action for certiorari under Rule 65
lies only when there is no appeal nor plain, speedy and adequate remedy in the ordinary course of law. Certiorari is not allowed when
a party to a case fails to appeal a judgment or final order despite the availability of that remedy. The remedies of appeal and
certiorari are mutually exclusive and not alternative or successive. 19 Appeals though filed late were allowed in some rare cases, but
there must be exceptional circumstances to justify the relaxation of the rules.
 Petitioner claims that his right to due process was violated when his counsel failed to assist him during the promulgation of
the judgment. He faults the Sandiganbayan for proceeding with the promulgation despite the petitioner not then being assisted by his
counsel, and being a layman he is not familiar with court processes and procedure.

Section 6, Rule 120 of the Revised Rules of Criminal Procedure, as amended, provides:

SEC. 6. Promulgation of judgment. -- The judgment is promulgated by reading it in the presence of the
accused and any judge of the court in which it was rendered. However, if the conviction is for a light offense, the
judgment may be pronounced in the presence of his counsel or representative. When the judge is absent or outside
the province or city, the judgment may be promulgated by the clerk of court.

If the accused is confined or detained in another province or city, the judgment may be promulgated by the
executive judge of the Regional Trial Court having jurisdiction over the place of confinement or detention upon
request of the court which rendered the judgment. The court promulgating the judgment shall have authority to
accept the notice of appeal and to approve the bail bond pending appeal; provided, that if the decision of the trial
court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for
bail can only be filed and resolved by the appellate court.

The proper clerk of court shall give notice to the accused personally or through his bondsman or
warden and counsel, requiring him to be present at the promulgation of the decision. If the accused was tried in
absentia because he jumped bail or escaped from prison, the notice to him shall be served at his last known address.

In case the accused fails to appear at the scheduled date of promulgation of judgment despite notice, the
promulgation shall be made by recording the judgment in the criminal docket and serving him a copy thereof at his
last known address or thru his counsel.

If the judgment is for conviction and the failure of the accused to appear was without justifiable cause, he
shall lose the remedies available in these Rules against the judgment and the court shall order his arrest. Within
fifteen (15) days from promulgation of judgment, however, the accused may surrender and file a motion for leave
of court to avail of these remedies. He shall state the reasons for his absence at the scheduled promulgation and if
he proves that his absence was for a justifiable cause, he shall be allowed to avail of said remedies within fifteen (15)
days from notice. (Emphasis supplied.)

There is nothing in the rules that requires the presence of counsel for the promulgation of the judgment of conviction to be
valid. While notice must be served on both accused and his counsel, the latter’s absence during the promulgation of judgment would
not affect the validity of the promulgation. Indeed, no substantial right of the accused on the merits was prejudiced by such absence
of his counsel when the sentence was pronounced.20

It is worth mentioning that petitioner never raised issue on the fact that his counsel was not around during the promulgation
of the judgment in his motion for reconsideration which merely prayed for reopening of the case to enable him to present liquidation
documents and receipts, citing financial constraints as the reason for his failure to attend the scheduled hearings. Before this Court
he now submits that the gross negligence of his counsel deprived him of the opportunity to present defense evidence.

Perusing the records, we find that the prosecution made a formal offer of evidence on August 30, 2002. At the scheduled presentation
of defense evidence on September 4, 2002, petitioner’s counsel, Atty. Manuel E. Iral, called the attention of the SB to the fact that he
had just received a copy of said formal offer, and requested for 15 days to submit his comment thereon. The SB granted his request
and set the case for hearing on December 2 and 3, 2002. 21 No such comment had been filed by Atty. Iral. On November 18, 2002, due
to difficulty in securing a quorum with five existing vacancies in the court, the SB thus reset the hearing to April 21 and 22, 2003.22 On
January 14, 2003, the SB’s Second Division issued a resolution admitting Exhibits “A” to “N” after the defense failed to submit any
comment to the formal offer of the prosecution, and stating that the previously scheduled hearings on April 21 and 22, 2003 shall
proceed.23 On April 11, 2003, the SB for the same reason again reset the hearing dates to August 11 and 12, 2003. 24

At the scheduled initial presentation of defense evidence on August 11, 2003, only petitioner appeared informing that when he passed
by that morning to his counsel’s residence, the latter was ill and thus requested for postponement. Without objection from th e
prosecution and on condition that Atty. Iral will present a medical certificate within five days, the SB reset the hearing to October 16
and 17, 2003. The SB also said that if by the next hearing petitioner is not yet represented by his counsel, said court shall appoint a
counsel de oficio in the person of Atty. Wilfredo C. Andres of the Public Attorney’s Office. 25 However, on October 16, 2003, the SB
received a letter from petitioner requesting for postponement citing the untimely death of his nephew and swelling of his feet due to
arthritis. He assured the court of his attendance in the next hearing it will set at a later date. 26 Accordingly, the SB reset the hearings
to February 12 and 13, 2004.27 On February 4, 2004, the SB again received a letter from petitioner requesting another postponement
for medical (arthritis) and financial (lack of funds for attorney’s/appearance fee) reasons. He assured the court of his availability after
the May 10, 2004 elections.28 This time, the SB did not grant the request and declared the case submitted for decision on the basis of
the evidence on record.29

On March 30, 2004, Atty. Iral filed an Urgent Motion for Reconsideration of the February 12, 2004 order submitting the case for
decision, citing circumstances beyond his control – the fact that he had no means to come to Manila from Kidapawan, North Cotabato,
he being jobless for the past four years. He thus prayed to be allowed to present his evidence on May 17 and 18, 2004. 30 The
prosecution opposed said motion, citing two postponements in which petitioner’s counsel have not submitted the required medical
certificate and explanation and failure to be present on October 16, 2003.31

In the interest of justice, the SB reconsidered its earlier order submitting the case for decision and gave the petitioner a last
chance to present his evidence on August 17 to 18, 2004.32On August 17, 2004, Atty. Iral appeared but requested that presentation of
evidence be postponed to the following day, which request was granted by the SB.33 The next day, however, only petitioner appeared
saying that his lawyer is indisposed. Over the objection of the prosecution and in the supreme interest of justice, the SB cancelled the
hearing and rescheduled it to November 15 and 16, 2004. Atty. Iral was directed to submit a verified medical certificate within 10 days
under pain of contempt, and the SB likewise appointed a counsel de oficio in the person of Atty. Roberto C. Omandam who was
directed to be ready at the scheduled hearing in case petitioner’s counsel is not ready, stressing that the court will no longer grant any
postponement. Still, petitioner was directed to secure the services of another counsel if Atty. Iral is not available. 34 With the
declaration by Malacañang that November 15, 2004 is a special non-working holiday, the hearing was reset to November 16, 2004 as
previously scheduled.35

On November 16, 2004, Atty. Iral appeared but manifested that he has no witness available. Over the objection of the
prosecution, hearing was reset to March 14 and 15, 2005. Atty. Iral agreed to submit the case for decision on the basis of prosecution
evidence in the event that he is unable to present any witness on the aforesaid dates. 36 On March 14, 2005, the SB again reset the
hearing dates to May 26 and 27, 2005 for lack of material time.37 However, at the scheduled hearing on May 26, 2005, petitioner
manifested to the court that Atty. Iral was rushed to the hospital having suffered a stroke, thereupon the hearing was rescheduled for
September 21 and 22, 2005 with a directive for Atty. Iral to submit a verified medical certificate. 38 On September 22, 2005, Atty. Iral
appeared but again manifested that he has no witness present in court. On the commitment of Atty. Iral that if by the next hearing he
still fails to present their evidence the court shall consider them to have waived such right, the hearing was reset to February 8 and 9,
2006.39 However, on February 9, 2006, the defense counsel manifested that he has some other commitment in another division of the
SB and hence he is constrained to seek cancellation of the hearing. Without objection from the prosecution and considering that the
intended witness was petitioner himself, the SB reset the hearing to April 17 and 18, 2006, which dates were later moved to August 7
and 8, 2006.40 On August 7, 2006, over the objection of the prosecution, the SB granted the motion for postponement by the defense
on the ground of lack of financial capacity. The hearing was for the last time reset to October 17 and 18, 2006, which date was later
changed to October 11 and 12, 2006.41

On October 11, 2006, on motion of the prosecution, the SB resolved that the cases be submitted for decision for failure of
the defense to appear and present their evidence, and directed the parties to present their respective memoranda within 30 days.42 As
only the prosecution submitted a memorandum, the SB declared the cases submitted for decision on August 24, 2007.43 Petitioner
and his counsel were duly notified of the promulgation of decision, originally scheduled on February 28, 2008 but was moved to March
27, 2008 in view of the absence of petitioner and the Handling Prosecutor. 44 On that date, however, on motion of Atty. Iral, the
promulgation was postponed to April 14, 2008.45 On April 14, 2008, both petitioner and his counsel failed to appear, but since the
notice to petitioner was sent only on April 3, 2008, the SB finally reset the promulgation of judgment to May 26, 2008. 46 While
supposedly absent during the promulgation, records showed that Atty. Iral personally received on the same date a copy of the
decision.47

The foregoing shows that the defense was granted ample opportunity to present their evidence as in fact several
postponements were made on account of Atty. Iral’s health condition and petitioner’s lack of financial resources to cover
transportation costs. The SB exercised utmost leniency and compassion and even appointed a counsel de oficio when petitioner cited
lack of money to pay for attorney’s fee. In those instances when either petitioner or his counsel was present in court, the following
documentary evidence listed during the pre-trial, allegedly in the possession of petitioner, and which he undertook to present at the
trial, were never produced in court at any time: (1) Liquidation Report by petitioner; (2) Certification of Accountant Zamba Lajaratu of
the National Commission on Indigenous People, Region XII, Cotabato City; and (3) Different Certifications by project officers and
barangay captains.48 If indeed these documents existed, petitioner could have readily submitted them to the court considering the
length of time he was given to do so. The fact that not a single document was produced and no witness was produced by the defense
in a span of 4 years afforded them by the SB, it can be reasonably inferred that petitioner did not have those evidence in the first
place.

The elements of malversation of public funds are:

1. that the offender is a public officer;

2. that he had the 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. 49

There is no dispute on the existence of the first three elements; petitioner admitted having received the cash advances for
which he is accountable. As to the element of misappropriation, indeed petitioner failed to rebut the legal presumption that he had
misappropriated the said public funds to his personal use, notwithstanding his unsubstantiated claim that he has in his possession
liquidation documents. The SB therefore committed neither reversible error nor grave abuse of discretion in convicting the petitioner
of malversation for failure to explain or account for his cash shortage by any liquidation or supporting documents. As this Court
similarly ruled in one case50:

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 as long as the accused cannot explain satisfactorily the shortage in his accounts.

In convicting petitioner, the Sandiganbayan cites the presumption in Article 217, supra, of the Revised Penal
Code, i.e., 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, is prima facie evidence that he has put such missing fund
or property to personal uses. The presumption is, of course, rebuttable. Accordingly, if the accused is able to present
adequate evidence that can nullify any likelihood that he had put the funds or property to personal use, then that
presumption would be at an end and the prima facie case is effectively negated. This Court has repeatedly said that
when the absence of funds is not due to the personal use thereof by the accused, the presumption is completely
destroyed; in fact, the presumption is never deemed to have existed at all. In this case, however, petitioner failed to
overcome this prima facie evidence of guilt.

There is grave abuse of discretion where the public respondent acts in a capricious, whimsical, arbitrary or despotic manner
in the exercise of its judgment as to be equivalent to lack of jurisdiction. The abuse of discretion must be so patent and gross as to
amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law
as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility. 51 Under the facts on record, we
find no grave abuse of discretion on the part of the SB when it submitted the case for decision and rendered the judgment of conviction
on the basis of the prosecution evidence after the defense failed to present its evidence despite ample opportunity to do so.

WHEREFORE, the petition is DISMISSED. The Decision promulgated on May 26, 2008 and Resolution issued on November 18,
2008 by the Sandiganbayan in Criminal Case No. 26327 are AFFIRMED.

With costs against the petitioner.

SO ORDERED.

G.R. No. 165781 June 5, 2009

RAUL S. TELLO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

CARPIO, J.:

The Case

Before the Court is a petition for review on certiorari 1 assailing the Decision2 promulgated on 19 March 2004 and the
Resolution3 promulgated on 1 September 2004 of the Sandiganbayan in Criminal Case No. 15006.
The Antecedent Facts

Raul S. Tello (petitioner) was a Telegraph Operator and Telegraphic Transfer-in-Charge of the Bureau of Telecommunications in
Prosperidad, Agusan del Sur. On 5 December 1986, Lordino Tomampos Saligumba (Saligumba), Commission on Audit Auditor II
assigned at the office of the Provincial Auditor of Agusan del Sur, received an order directing him and Dionisio Virtudazo (Virtudazo)
to conduct an audit examination of petitioner’s accounts. Saligumba and Virtudazo (the auditors) conducted an audit from 8 to 10
December 1986 where it was initially determined that petitioner had a shortage in the total amount of ₱6,152.90. When the auditors
questioned petitioner on the official receipts of the bank to confirm the remittance advices, petitioner informed them that they were
sent to the regional office of the Bureau of Telecommunications. Saligumba wrote the unit auditor of the Philippine National Bank
(PNB), San Francisco, Agusan del Sur branch, requesting for confirmation of petitioner’s remittances and a list of validated remittances
from 1 January to 9 December 1986. In a letter dated 10 December 1986, PNB’s branch auditor informed Saligumba that petitioner
did not make any remittance to the bank from 31 July 1985 to 30 October 1986. Saligumba secured copies of the official receipts and
compared them with the remittance advices submitted by petitioner and found that the bank’s official receipts did not correspond
with petitioner’s remittance advices.

The auditors found that the total shortage incurred by petitioner amounted to ₱204,607.70.

Saligumba wrote petitioner a letter dated 11 December 1986 outlining the results of the examination and demanding the immediate
production and restitution of the missing amounts. However, petitioner failed to submit his explanation and to produce or restitute
the missing funds. Petitioner also failed to show in his office starting 8 December 1986.

Petitioner was charged before the Sandiganbayan with malversation of public funds under Article 217 of the Revised Penal Code (RPC),
thus:

That on or about and prior to December 11, 1986, in Prosperidad, Agusan del Sur and within the jurisdiction of this Honorable Court,
accused, a public employee, being then a Telegraph Operator and Telegraphic Transfer-In-Charge of Prosperidad, Agusan del Sur,
Bureau of Telecommunication[s,] and as such accountable for the public funds collected and/or received by him, with grave abuse of
confidence, did then and there, wilfully and unlawfully misappropriate, embezzle and convert for his own personal use and benefit
from said funds the amount of ₱219,904.05 to the damage and prejudice of the government in the afore-stated amount.

CONTRARY TO LAW.4

Petitioner did not present any testimonial evidence for his defense. He only manifested that as far as he was concerned, the initial
findings of the auditors showed only a shortage of ₱6,152.90. He disputed the initial and final findings of the auditors for being
unreliable. Petitioner further alleged that as an acting telecom operator, he was not an accountable officer.

The Ruling of the Sandiganbayan

In its 19 March 2004 Decision, the Sandiganbayan found petitioner guilty beyond reasonable doubt of malversation of public funds.
The Sandiganbayan ruled that the prosecution was able to establish the elements of the crime, thus:

1. that the offender is a public officer;

2. that he has the custody and control of funds or property by reason of the duties of his office;

3. that the funds or property are public funds or property for which he is accountable; and

4. that he appropriated, took, misappropriated or consented or through abandonment or negligence, permitted another
person to take them.

The Sandiganbayan held that while petitioner disputed the amount of the shortage, he did not deny that he incurred the shortage.
The Sandiganbayan further noted that when the auditors examined the cashbooks and found the shortage, petitioner did not show
up for work anymore. Neither did petitioner question the cash examination report. The Sandiganbayan stated that it took petitioner
almost three years before he submitted himself to the jurisdiction of the court, and it was only because he was arrested in another
province.
However, the Sandiganbayan modified the amount of shortage to ₱204,607.70 instead of ₱219,904.05 in the information.1avvphi1

The dispositive portion of the Sandiganbayan’s decision reads:

WHEREFORE, judgment is hereby rendered finding the accused, Raul S. Tello, guilty beyond reasonable doubt of the crime of
Malversation defined in and penalized by Article 217 of the Revised Penal Code, as amended, and he is hereby sentenced to suffer the
penalty of twelve (12) years and one (1) day of reclusion temporal minimum, as the minimum penalty, to eighteen (18) years and one
(1) day of reclusion temporal, maximum, as the maximum penalty, there being no mitigating or aggravating circumstance attendant
to the commission of the crime. Accused is further sentenced to suffer the penalty of perpetual special disqualification and is likewise
ordered to pay a fine equivalent to the amount malversed or the amount of ₱204,607.70, and to indemnify the Bureau of
Telecommunications the amount of ₱204,607.70 with interest thereon.

Costs against the accused.

SO ORDERED.5

Petitioner filed a motion for reconsideration assailing his conviction and arguing that the Sandiganbayan’s decision was void because
it was rendered and promulgated after nine years and five months from the time it was submitted for decision.

In its 1 September 2004 Resolution, the Sandiganbayan denied petitioner’s motion for lack of merit. The Sandiganbayan ruled that the
right to speedy disposition of cases, which petitioner invoked for the first time in the motion for reconsideration, is deemed violated
only when the proceedings are attended by vexatious, capricious, and oppressive delays. There was no violation when petitioner failed
to seasonably establish his right.

Hence, the petition before this Court.

The Issues

The issues in this case are the following:

1. Whether petitioner is guilty beyond reasonable doubt of the crime of malversation of public funds under Article 217 of the
RPC;

2. Whether Saligumba has authority to conduct the audit examination; and

3. Whether petitioner was denied his constitutional right to a speedy disposition of his case.

The Ruling of this Court

The petition has no merit.

Malversation of Public Funds

Article 217 of the RPC states:

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 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 elements of malversation of public funds under Article 217 of the RPC are:

1. that the offender is a public officer;

2. that he had the 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.6

In this case, all the elements of the crime are present.

Petitioner is a public officer. He took his Oath of Office7 as Acting Operator-in-Charge on 13 January 1982. Regional Office Order No.
358 dated 27 September 1984 designated petitioner as Telegraphic Transfer-in-Charge aside from his regular duties as Acting Operator-
in-Charge of Prosperidad, Agusan del Sur. He was appointed Telegraph Operator effective 1 March 1986. 9

As Telegraph Operator and Telegraphic Transfer-in-Charge, petitioner was in charge of the collections which he was supposed to remit
to the PNB. The funds are public funds for which petitioner was accountable. It was also established that petitioner misappropriated
the money. He failed to remit his cash collections and falsified the entries in the cashbooks to make it appear that he remitted the
money to PNB. Petitioner failed to explain the discrepancies and shortage in his accounts and he failed to restitute the missing amount
upon demand. It was also established that petitioner stopped reporting to work starting 8 December 1986.

Petitioner did not present any testimonial evidence for his defense. Instead, he merely manifested that he only incurred a shortage of
₱6,152.90, the initial shortage found by the auditors.

The last paragraph of Article 217 of the RPC states: "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."

In this case, petitioner failed to rebut the presumption of malversation. He did not present testimonial evidence to defend himself. He
practically admitted the shortage except that he manifested, contrary to the evidence presented by the prosecution, that only the
amount of ₱6,152.90 was missing. He did not report to his office when the audit examination started. We sustain the Sandiganbayan’s
finding that petitioner’s guilt has been proven beyond reasonable doubt.

Authority of the Provincial Auditor’s Office

to Conduct Audit Examinations

Petitioner alleges that Saligumba, who was an examiner of the Provincial Auditor’s Office, has no authority to conduct the audit
examination.

We do not agree.
Petitioner is assigned as Telegraph Operator and Telegraphic Transfer-in-Charge of the Municipality of Prosperidad, Agusan del Sur
which is within the jurisdiction of the Provincial Auditor’s Office. Presidential Decree No. 144510 (PD 1445) created not only a central
but also regional auditing offices. Section 7(2) of PD 1445 states:

The Commission shall keep and maintain such regional offices as may be required by the exigencies of the service in accordance with
the Integrated Reorganization Plan for the national government, or as may be provided by law, which shall serve as the immediate
representatives of the Commission in the regions under the direct control and supervision of the Chairman.

The authority of the Provincial Auditor’s Office emanates from the central office as its representative.

Violation of Petitioner’s Right to Speedy Disposition of Cases

Petitioner raised for the first time in his motion for reconsideration before the Sandiganbayan that his right to a speedy disposition of
his case had been violated. Petitioner pointed out that his case was submitted for decision on 26 October 1994 but was only decided
by the Sandiganbayan on 19 March 2004.

We disagree.

Section 16, Article III of the Constitution provides: "All persons shall have the right to a speedy disposition of their cases before all
judicial, quasi- judicial or administrative bodies."

In ascertaining whether the right to speedy disposition of cases has been violated, the following factors must be considered: (1) the
length of delay; (2) the reasons for the delay; (3) the assertion or failure to assert such right by the accused; and (4) the prejudice
caused by the delay.11 The right to a speedy disposition of cases is considered violated only when the proceedings are attended by
vexatious, capricious, and oppressive delays. 12 A mere mathematical reckoning of the time involved is not sufficient. 13 In the
application of the constitutional guarantee of the right to a speedy disposition of cases, particular regard must also be taken of the
facts and circumstances peculiar to each case. 14

In Bernat v. Sandiganbayan,15 the Court denied petitioner’s claim of denial of his right to a speedy disposition of cases considering
that the petitioner in that case chose to remain silent for eight years before complaining of the delay in the disposition of his case. The
Court ruled that petitioner failed to seasonably assert his right and he merely sat and waited from the time his case was submitted for
resolution. In this case, petitioner similarly failed to assert his right to a speedy disposition of his case. He did not take any step to
accelerate the disposition of his case. He only invoked his right to a speedy disposition of cases after the Sandiganbayan promulgated
its decision convicting him for malversation of public funds. Petitioner’s silence may be considered as a waiver of his right.16

WHEREFORE, we DENY the petition. We AFFIRM the 19 March 2004 Decision and the 1 September 2004 Resolution of the
Sandiganbayan in Criminal Case No. 15006.

SO ORDERED.

G.R. No. 162489, June 17, 2015

BERNARDO U. MESINA, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

BERSAMIN, J.:

Under review is the decision promulgated on July 24, 2003, 1 whereby the Court of Appeals (CA) affirmed with modification the
judgment rendered by the Regional Trial Court (RTC), Branch 120, in Caloocan City convicting the petitioner of malversation as defined
and penalized under Article 217, paragraph 4 of the Revised Penal Code.2chanrobleslaw

Antecedents

On July 9, 1998, an information was filed in the RTC charging the petitioner with qualified theft. Upon his motion, he was granted a
reinvestigation. On September 17, 1998, after the reinvestigation, an amended information was filed charging him instead with
malversation of public funds, the amended information alleging thusly:chanRoblesvirtualLawlibrary
That on or about the 6th day of July 1998, in Caloocan City, Metro Manila, and within the jurisdiction of this Honorable Court, the said
above-named accused, being then an employee of [the] City Treasurer’s Office, Caloocan City, and acting as Cashier of said office, and
as such was accountable for the public funds collected and received by him (sic) reason of his position, did then and there willfully,
unlawfully and feloniously misappropriated, misapplied and embezzled and convert to his own personal use and benefit said funds in
the sum of P167,876.90, to the damage and prejudice of the City Government of Caloocan in the aforementioned amount of
P167,876.90.

CONTRARY TO LAW.3
The CA adopted the RTC’s summary of the facts, as follows:chanRoblesvirtualLawlibrary
x x x that in the afternoon of July 6, 1998 between 1:00 and 2:00 o’clock, herein accused Bernardo Mesina then Local Treasurer Officer
I of the Local Government of Caloocan City went to the so called Mini City Hall located at Camarin Road, District I, Caloocan City for
purposes of collection. While thereat, Ms. Rosalinda Baclit, Officer-In-Charge of collection at said office, turned over/remitted to
Mesina the weeks’ collection for the period covering the month of June 1998 representing, among others, the Market Fees’ collection,
Miscellaneous fees, real property taxes, Community Tax Receipts (cedula) and the ‘Patubig’ (local water system) collection all
amounting to P468,394.46 (Exhs. ‘K’ and ‘K-2’, ‘L’ – ‘L-2’, ‘M’, ‘M-2’, ‘N’ – ‘N-2’, ‘O’ – ‘O-2’, ‘P’ – ‘P-2’, ‘Q’ – ‘Q-2’, ‘R’, ‘R-2’, ‘S’ – ‘S-2’,
‘T’ – ‘TO-2’, ‘U’ – ‘U-2’, ‘V’ – ‘V-2’, ‘W’, ‘W-2’, ‘X’ – ‘X-2’, and ‘Y’ – ‘Y-2’). After counting the cash money, the (sic) were bundled and
placed inside separate envelopes together with their respective liquidation statements numbering about thirteen (13) pieces signed
by both Ms. Irene Manalang, OIC of the Cash Receipt Division, and herein accused Mesina acknowledging receipt and collection thereof
(Exhs, ‘K-1’, ‘M-3’, ‘N-3’, ‘P-3’, ‘Q-3’, ‘R-3’, T-3’, ‘U-3’, ‘V-3’, ‘W-3’, ‘X-3’, and ‘Y-3’). Thereafter, Bernardo Mesina together with his driver
left the Mini City Hall and proceeded to City Hall Main.

Later that same afternoon, Ms. Baclit received several phone calls coming from the Main City Hall. At around 3:00 o’clock, Mrs. Josie
Sanilla, secretary of City Treasurer Carolo V. Santos, called up the Mini City Hall confirming the collection of the ‘Patubig’ by Mr.
Bernardo Mesina. Thirty (30) minutes thereafter, Mrs. Elvira Coleto, Local Treasurer Operation Officer II of the Main City Hall called
up to inform Ms. Baclit that the supposed ‘Patubig’ collection amounting to P167,870.90 (Exh. ‘K-2’) was not remitted. Also, Bernardo
Mesina phoned Ms. Baclit telling the latter that he did not receive the ‘Patubig’ collection. Alarmed by these telephone calls she just
received, Ms. Baclit then immediately consulted the documents/liquidation statements supposedly signed by Mesina acknowledging
receipt and collection thereof, however, all efforts to locate and retrieved (sic) these records proved futile at that moment.

Meanwhile, City Treasurer Carolo V. Santos, after having been informed by Mrs. Irene Manalang of the discrepancy in the collection,
summoned both Ms. Baclit and Bernardo Mesina to his office at the Main City Hall for an inquiry relative to the missing P167,870.90
‘Patubig’ collection. And as the two (2), Baclit and Mesina, insisted on their respective versions during said confrontation, City
Treasurer Santos, in the presence of the Chief of the Cash Disbursement Division, Administrative Officers and Local Treasurer’s
Operation Officer II Mrs. Coleto, then ordered Mesina’s vault sealed pending further investigation.

The following morning July 7, 1998, Caloocan City Mayor Reynaldo O. Malonzo called for an immediate probe of the matter. Present
during the investigation at the Mayor’s Office were Ms. Baclit, accused Bernardo Mesina, City Auditor Chito Ramirez, City Treasurer
Santos as well as the representative from the different offices concerned. Again, when asked by Mayor Malonzo as to whether or not
[t]he ‘Patubig’ collection was collected and/or remitted, Mesina stood fast in his denial of having received the same; Ms. Baclit on the
other hand positively asserted the remittance and collection thereof by Bernardo Mesina.

Thereafter, they all proceeded to the cashier’s room where Mesina had his safe and thereat, in the presence of COA State Auditor III
Panchito Fadera, Cashier IV-CTO Fe. F. Sanchez, Administrative Officer IV Lourdes Jose, LTOO II Elvira M. Coleto, accused Bernardo
Mesina and LTOO II Rosalinda Baclit, Mesina’s vault was opened and a cash count and/or physical count of the contents thereof was
conducted. Found inside were the following, to wit: 1) coins amounting to P107.15; 2) coins amounting to P50.47; 3) coins amounting
to P127.00; 4) coins amounting to P64.10; 5) cash with tape amounting to P770.00; 6) spoiled bills amounting to P440.00; 7) bundled
bills amounting to P20,500.00. Also found inside were the Report of Collection by the Liquidating Officer (RCLO) in the amount of
P123,885.55 as well as the original and duplicate copies of the daily sum of collections of accountable form under the name of one
Racquel Ona dated March 31, 1998 amounting to P123,885.55 (six (6) copies of vales/chits) Exhs. ‘Z’, ‘Z-1’ and ‘Z-2’). In addition
thereto, the cash amount of P67,900.00 then withheld by the City Cashier pending this investigation, was turned over to the said
auditing team, thus, the total cash money audited against accused Mesina amounted to P89,965.72 (sic) (Exhs. ‘BB’ and ‘BB-1’).

In the afternoon of July 7, 1998, at about 5:00 o’clock, Mses. Rosalinda Baclit and Maria Luisa Canas all went to the SID Caloocan City
Police Station to have their separate sworn statements taken (Exhs. ‘E’, ‘E-1’, ‘D’, ‘D-1’, ‘F’, and ‘F-1’). Mmes. Lorna Palomo-Cabal,
Divina Dimacali-Sarile and Victoria Salita Vda. De Puyat likewise executed a joint sworn affidavit (Exhs. ‘G’, ‘G-1’, ‘G-2’, and ‘G-3’) in
preparation for the filing of appropriate criminal charge against Bernardo Mesina.
The following day, July 8, 1998, Mamerto M. Manahan, Panchito Fadera and Carolo V. Santos also executed their respective affidavits
in relation to the incidents at bar (Exhs. ‘A’, ‘A-1’, ‘A-2’; Exhs. ‘B’, and ‘B-1’; Exhs. ‘C’, and ‘C-1’). Meanwhile, the statement of collection
supposedly signed by accused Mesina was finally recovered at Rosalinda Baclit’s desk hidden under a pile of other documents. (Rollo,
pp. 74-75)4
The Defense presented the oral testimony of the petitioner and documentary evidence. 5 He admitted collecting the total amount of
P468,394.46 from Baclit, including the subject patubig collection totaling to P167,976.90, but adamantly denied misappropriating,
misapplying, and embezzling the patubigcollection, maintaining that the patubig collection was found complete in his vault during the
inspection. He explained that he deliberately kept the collection in his vault upon learning that his wife had suffered a heart attack
and had been rushed to the hospital for immediate medical treatment. He believed that he did not yet need to remit the amount to
the OIC of the Cash Receipt Division because it was still to be re-counted. He claimed that when he returned to the Main City Hall that
same day his vault was already sealed. 6 He said that the accusation was politically motivated. In support of his claim of innocence, he
cited his numerous awards and citations for honesty and dedicated public service. 7chanrobleslaw

On November 8, 2001, the RTC found the petitioner guilty beyond reasonable doubt of the crime of malversation,
disposing:chanRoblesvirtualLawlibrary
WHEREFORE, premises considered, this Court finds the accused BERNARDO MESINA Y UMALI guilty beyond reasonable doubt of the
crime of Malversation as defined and penalized under Article 217 paragraph 4 of the Revised Penal Code and hereby sentences him
to suffer an indeterminate penalty of twelve (12) years and one (1) day of prision mayor as minimum to twenty (20) years of reclusion
temporal as maximum.

The Court further imposes a penalty of perpetual disqualification to hold public office and a fine of P167,876.90 upon the accused.

SO ORDERED.8
On July 24, 2003, the CA affirmed the RTC’s decision, with modification as to the amount of fine
imposed,9 decreeing:chanRoblesvirtualLawlibrary
WHEREFORE, foregoing premises considered, the Decision dated November 8, 2001 of the Regional Trial Court, Branch 120, Caloocan
City in Criminal Case No. C-54217 is affirmed with modification in the sense that the fine is reduced from P167,876.98 to P37,876.98.
Costs against accused-appellant.

SO ORDERED.
Issues

In his appeal, the petitioner submits for consideration the following:chanRoblesvirtualLawlibrary

I. WHETHER THE COURT OF APPEALS ERRED IN AFFIRMING WITH MODIFICATION THE CONVICTION OF PETITIONER
ACCUSED-APPELLANT OF THE CRIME OF MALVERSATION NOTWITHSTANDING THAT:
a. it had admitted in evidence the testimony of prosecution witness ELVIRA COLITO that she saw, when
accused-appellant’s vault was opened, to have seen (sic) the bundles of the missing Patubig collections
of more than Ps130,000.00 (sic), and thus, in effect, there was no misappropriation, as one of the elements
of the crime of malversation;

b. that it erred and completely misapprehended and failed to appreciate the true meaning of the testimony of
the said witness of seeing inside the vault more than Ps130,000.00 in bundles by treating/and/or (sic)
appreciating the same as exactly Ps130,000.00 flat without appreciating the words more than, thus guilty
of erroneous inference surmises and conjectures;

c. that it overlooked and completely disregarded that inside the vault was the sum of Ps20,500.00 in bundles
also [Exh. “BB and B-1”] regarding contents of the vault or the total sum of Ps22,065.72 testified to by
Panchito Madera (sic), Head of the Audit Team;

d. the Court of Appeals gravely erred to surmise and at least look on the lack from the lists of inventories of
the vault the more than Ps130,000.00 in bundles and why it was not listed among the moneys found inside
the accused-appellant’s vault;

e. doubts and inconsistencies existing threrefrom shall remained (sic) favorable to the accused-appellant
pursuant to applicable jurisprudence;
 II. THAT THE COURT OF APPEALS ERRED ON A (SIC) QUESTIONS OF LAW, THAT THE INVESTIGATION CONDUCTED BY
THE GROUP OF MAYOR MALONZO, THE TREASURER, THE ADMINISTRATOR, THE CITY AUDITOR, CHIEF OF DIVISIONS
AND THE AUDIT PROCEEDINGS ARE NULL AND VOID DUE:
A. Accused-appellant was not informed of his constitutional right to assistance of counsel as mandated by the
Constitution;

B. The audit proceedings did not comply strictly with the Manual of Instructions to Treasurers and Auditors and
other Guidelines, thus null and void;

C. Thus, the presumption of juris tantum in Art. 127 of the Revised Penal Code is overcome firmly supported by
the discovery of the missing money and further the conclusions of the Court of Appeals was against
established jurisprudence enunciated in the case of TINGA vs. PEOPLE OF THE PHILIPPINES, No. L-57650,
[160 SCRA 483];

III. WHETHER THE COURT OF APPEALS WAS FATALLY WRONG IN NOT APPLYING EVIDENCE OF GOOD MORAL
CHARACTER TO ACQUIT AND EXONERATE PETITIONER ACCUSED-APPELLANT IN VIOLATION OF RULE 130, SEC. 46,
OF THE RULES OF COURT.
. Notwithstanding, not only are the evidence weak, but its findings or discovery of more than
Ps130,000.00 inside the vault is subject to double interpretations, and/or double alternative or probabilities,
thus the presumption of innocence will be adopted. 10

Ruling of the Court

The appeal has no merit.

The crime of malversation of public funds charged herein is defined and penalized under Article 217 of the Revised Penal Code, as
amended, as follows:chanRoblesvirtualLawlibrary
Article 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:ChanRoblesVirtualawlibrary

x x x x

4. The penalty of reclusion temporal in its medium and maximum periods, if the amount involved is more than twelve thousand pesos
but is less than twenty-two thousand pesos. If the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum
period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine equal to the
amount of the funds malversed or equal to the total value of the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any
duly authorized officer, shall be prima facieevidence that he has put such missing funds or property to personal use. (As amended by
R.A. No. 1060)
The crime of malversation of public funds has the following elements, to wit: (a) that the offender is 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 the funds or property were public funds or
property for which he was accountable; and (d) that he appropriated, took, misappropriated or consented or, through abandonment
or negligence, permitted another person to take them. 11chanrobleslaw

The elements of the crime charged were duly established against the petitioner.

The Prosecution proved, firstly, that the petitioner was a public officer with the position of Local Treasurer Officer I of Caloocan City;
secondly, that by reason of his position, he was tasked to collect fees and taxes regularly levied by the Mini City Hall, including market
fees, miscellaneous fees, real property taxes, and the subject patubig collection; and, thirdly, that all of the fees and taxes collected
were unquestionably public funds for which he was accountable.

As to the fourth element of misappropriation, the petitioner did not rebut the presumption that he had misappropriated
the patubig collection to his personal use. He had earlier feigned ignorance of having received the patubig collection when he phoned
Ms. Baclit to tell her that he did not receive the collection. He still insisted that he had not received the sum from Ms. Baclit when the
City Treasurer summoned them both. His denial continued until the next day when City Mayor Malonzo himself asked them both
about the matter. Only after the petitioner’s vault was finally opened did he declare that the collection was intact inside his vault.
Even then, the actual amount found therein was short by P37,876.98. Conformably with Article 217 of the Revised Penal Code, supra,
the failure of the petitioner to have the patubig collection duly forthcoming upon demand by the duly authorized officer was prima
facie evidence that he had put such missing fund to personal use. Although the showing was merely prima facie, and, therefore,
rebuttable, he did not rebut it, considering that he not only did not account for the collection upon demand but even steadfa stly
denied having received it up to the time of the inspection of the sealed vault. Under the circumstances, he was guilty of the
misappropriation of the collection.

Malversation is committed either intentionally or by negligence. The dolo or the culpa is only a modality in the perpetration of the
felony. Even if the mode charged differs from the mode proved, the same offense of malversation is still committed; hence, a
conviction is proper.12 All that is necessary for a conviction is sufficient proof that the accused accountable officer had received public
funds or property, and did not have them in his possession when demand therefor was made without any satisfactory explanation of
his failure to have them upon demand. For this purpose, direct evidence of the personal misappropriation by the accused is
unnecessary as long as he cannot satisfactorily explain the inability to produce or any shortage in his accounts. 13 Accordingly, with the
evidence adduced by the State being entirely incompatible with the petitioner’s claim of innocence, we uphold the CA’s affirmance of
the conviction, for, indeed, the proof of his guilt was beyond reasonable doubt.

The petitioner bewails the deprivation of his constitutionally guaranteed rights during the investigation. He posits that a custodial
investigation was what really transpired, and insists that the failure to inform him of his Miranda rights rendered the whole
investigation null and void.

We disagree with the petitioner’s position.

According to People v. Marra,14 custodial investigation involves any questioning initiated by law enforcement authorities after a person
is taken into custody or otherwise deprived of his freedom of action in any significant manner. The safeguards during custodial
investigation begin to operate as soon as the investigation ceases to be a general inquiry into a still unsolved crime, and the
interrogation is then focused on a particular suspect who has been taken into custody and to whom the police would then direct
interrogatory questions that tend to elicit incriminating statements. The situation contemplated is more precisely described as one
where –
After a person is arrested and his custodial investigation begins a confrontation arises which at best may be termed unequal. The
detainee is brought to an army camp or police headquarters and there questioned and cross-examined not only by one but as many
investigators as may be necessary to break down his morale. He finds himself in a strange and unfamiliar surrounding, and every
person he meets he considers hostile to him. The investigators are well-trained and seasoned in their work. They employ all the
methods and means that experience and study has taught them to extract the truth, or what may pass for it, out of the detainee. Most
detainees are unlettered and are not aware of their constitutional rights.

And even if they were, the intimidating and coercive presence of the officers of the law in such an atmosphere overwhelms them into
silence x x x.15
Contrary to the petitioner’s claim, the fact that he was one of those being investigated did not by itself define the nature of the
investigation as custodial. For him, the investigation was still a general inquiry to ascertain the whereabouts of the
missing patubig collection. By its nature, the inquiry had to involve persons who had direct supervision over the issue, including the
City Treasurer, the City Auditor, the representative from different concerned offices, and even the City Mayor. What was conducted
was not an investigation that already focused on the petitioner as the culprit but an administrative inquiry into the missing city funds.
Besides, he was not as of then in the custody of the police or other law enforcement office.

Even as we affirm the CA, we have to clarify the penalty imposed in terms of the Indeterminate Sentence Law.

Section 1 of the Indeterminate Sentence Law states that an indeterminate sentence is imposed on the offender consisting of a
maximum term and a minimum term.16 The maximum term is the penalty properly imposed under the Revised Penal Code after
considering any attending circumstance; while the minimum term is within the range of the penalty next lower than that prescribed
by the Revised Penal Code for the offense committed.
Conformably with the instructions on the proper application of the Indeterminate Sentence Law in malversation reiterated in Zafra v.
People:17 (a) the penalties provided under Article 217 of the Revised Penal Code constitute degrees; and (b) considering that the
penalties provided under Article 217 of the Revised Penal Code are not composed of three periods, the time included in the prescribed
penalty should be divided into three equal portions, each portion forming a period, pursuant to Article 65 of the Revised Penal
Code.18 With the amount of P37,876.98 ultimately found and declared by the CA to have been misappropriated exceeding the
P22,000.00 threshold, the imposable penalty is reclusion temporal in its maximum period to reclusion perpetua (that is, 17 years, four
months and one day to reclusion perpetua), the minimum period of which is 17 years, four months and one to 18 years and eight
months, the medium period of which is 18 years, eight months and one day to 20 years, and the maximum period is reclusion perpetua.

Accordingly, the maximum of the indeterminate sentence of the petitioner is the medium period in view of the absence of any
aggravating or mitigating circumstances, while the minimum of the indeterminate sentence shall be taken from the penalty next lower,
which is reclusion temporal in its minimum and medium periods (i.e., from 12 years and one day to 17 years and four months). Hence,
the indeterminate sentence for the petitioner is modified to 12 years and one day of reclusion temporal, as minimum, to 18 years,
eight months and one day of reclusion temporal, as maximum.

In addition, the Court notes that both lower courts did not require the petitioner to pay the amount of P37,876.98 subject of the
malversation. That omission was plain error that we should now likewise correct as a matter of course, for there is no denying that
pursuant to Article 100 of the Revised Penal Code, every person criminally liable for a felony is also civilly liable. The omission, if
unchecked and unrevised, would permanently deprive the City of Caloocan of the misappropriated amount. Such prejudice to the
public coffers should be avoided.

The Court has justifiably bewailed the omissions by the lower courts in this respect, and has seen fit to point out in Zafra v.
People:chanRoblesvirtualLawlibrary
One more omission by the CA and the RTC concerned a matter of law. This refers to their failure to decree in favor of the Government
the return of the amounts criminally misappropriated by the accused. That he was already sentenced to pay the fine in each count
was an element of the penalties imposed under the Revised Penal Code, and was not the same thing as finding him civilly liable for
restitution, which the RTC and the CA should have included in the judgment. Indeed, as the Court emphasized in Bacolod v. People, it
was “imperative that the courts prescribe the proper penalties when convicting the accused, and determine the civil liability to be
imposed on the accused, unless there has been a reservation of the action to recover civil liability or a waiver of its recovery,”
explaining the reason for doing so in the following manner:chanRoblesvirtualLawlibrary
It is not amiss to stress that both the RTC and the CA disregarded their express mandate under Section 2, Rule 120 of the Rules of
Court to have the judgment, if it was of conviction, state: “(1) the legal qualification of the offense constituted by the acts committed
by the accused and the aggravating or mitigating circumstances which attended its commission; (2) the participation of the accused
in the offense, whether as principal, accomplice, or accessory after the fact; (3) the penalty imposed upon the accused; and (4) the
civil liability or damages caused by his wrongful act or omission to be recovered from the accused by the offended party, if there is
any, unless the enforcement of the civil liability by a separate civil action has been reserved or waived.” Their disregard compels us
to act as we now do lest the Court be unreasonably seen as tolerant of their omission. That the Spouses Cogtas did not themselves
seek the correction of the omission by an appeal is no hindrance to this action because the Court, as the final reviewing tribunal, has
not only the authority but also the duty to correct at any time a matter of law and justice.

We also pointedly remind all trial and appellate courts to avoid omitting reliefs that the parties are properly entitled to by law or in
equity under the established facts. Their judgments will not be worthy of the name unless they thereby fully determine the rights and
obligations of the litigants. It cannot be otherwise, for only by a full determination of such rights and obligations would they be true
to the judicial office of administering justice and equity for all. Courts should then be alert and cautious in their rendition of judgments
of conviction in criminal cases. They should prescribe the legal penalties, which is what the Constitution and the law require and expect
them to do. Their prescription of the wrong penalties will be invalid and ineffectual for being done without jurisdiction or in manifest
grave abuse of discretion amounting to lack of jurisdiction. They should also determine and set the civil liability ex delicto of the
accused, in order to do justice to the complaining victims who are always entitled to them. The Rules of Courtmandates them to do so
unless the enforcement of the civil liability by separate actions has been reserved or waived. 19
Under the law, the civil liability of the petitioner may involve restitution, reparation of the damage caused, and indemnification for
consequential damages.20 Given that his obligation requires the payment of the amount misappropriated to the City of Caloocan, the
indemnification for damages is through legal interest of 6% per annum on the amount malversed, reckoned from the finality of this
decision until full payment.21chanrobleslaw

WHEREFORE, the Court AFFIRMS the decision promulgated on July 24, 2003 finding petitioner BERNARDO U. MESINA guilty beyond
reasonable doubt of malversation of public funds subject to the MODIFICATIONS that: (a) he shall suffer the indeterminate penalty of
12 years and one day of reclusion temporal, as minimum, to 18 years, eight months and one day of reclusion temporal, as maximum,
and pay a fine of P37,876.98; and (b) he shall further pay to the City of Caloocan the amount of P37,876.98, plus interest thereon at
the rate of 6% per annum, reckoned from the finality of this decision until the amount is fully paid.

The petitioner shall pay the costs of suit.

SO ORDERED.cralawlawlibrary

G.R. No. 95604 April 29, 1994

LUCIANO KIMPO y NIÑANUEVO, petitioner,

vs.
THE SANDIGANBAYAN AND PEOPLE OF THE PHILIPPINES, respondents.

Augusto S. Sanchez & Associates Law Firm for petitioner.

The Solicitor General for the People of the Philippines.

VITUG, J.:

Petitioner Luciano Kimpo y Niñanuevo, a Special Collecting Officer of the Bureau of Domestic Trade at General Santos City, was found
guilty beyond reasonable doubt by the Sandiganbayan of malversation of public funds. He appealed to this Court.

The case was initiated by Special Prosecution Officer Mothalib C. Onos who, on 29 March 1989, filed with the Sandiganbayan an
information charging petitioner with having committed the following offense:

That on or about April 30, 1985 and/or sometime prior thereto, in General Santos city, and within the jurisdiction of
this Honorable Court, accused Luciano Kimpo, a public officer, being the Special Collecting Officer, Bureau of
Domestic Trade, General Santos City, and as such is an accountable officer responsible for the funds collected by him
by reason of the duties of his office, did then and there wilfully, unlawfully and feloniously, with grave abuse of
confidence, appropriate, embezzle and convert to his personal use and benefit the sum of Fifteen Thousand Three
Hundred Nine Pesos (P15,309.00), which amount constitutes his collection, to the damage and prejudice of the
Government in the aforesaid amount.

Contrary to law.

When arraigned, petitioner, assisted by counsel, 1 pleaded, "not guilty."

At the pre-trial inquest conducted by the Sandiganbayan, the following exhibits were admitted:

1. Exhibits A and A-1, as well as the fact that they are faithful reproductions of the originals. In connection therewith,
the accused admitted that he was on or before April 30, 1985, Special Collecting Officer, Bureau of Trade, General
Santos City;

2. That an audit-examination of the cash and accounts of the accused was conducted on April 30, 1985; that the
corresponding Report of Examination (Exhibit B), Statement of Accountability for Accountable Forms without Money
Value (Exhibit B-1), and Reconciliation Statement of Accountability (Exhibit B-3) were made and signed, and that the
signatures appearing on the dorsal side of Exhibits B and B-1 are those of the accused, all these admissions being
subject to the qualification that the accused is questioning the validity of the audit examination and the accuracy of
the results thereof on constitutional grounds;

3. The existence of Exhibits C, E, F, M and M-1, including the fact that they are faithful copies of the originals, subject
to the same qualification made with respect to Exhibits B, B-1 and B-2;
 4. The existence of Exhibits D and D-1, including the fact that they are correct copies of the originals, but not their
relevance;

5. Exhibit H as the Official Cash Book of the accused and his signatures appearing between the entries therein
beginning August 1, 1984 and up to April 31, 1985, with the qualification that the said entries were not made by him;

6. The existence of Exhibits I, I-1 to I- 40, J, J-1 to J-95, K,

K-1 to K-26, and L, L-1 to L-44 (carbon copies of official receipts) and his signatures thereon, subject to the
qualification that the entries therein were not made by him;

7. Exhibit N, subject to the qualification that the data mentioned therein were based on the results of the audit
examination, the validity and accuracy of which are questioned;

8. Exhibits A1-1, N2-2, T2-1, L3 -1, F4 -2, A5, L7, N7-1, U7-2, B8-1, C8, D8, E8, G8, G8, H8, M8-2, Y8-2 AND Y8-2 AND Y8-3
(xerox copies of official receipts), including the fact that they are faithful reproductions of the originals;

9. Exhibits J8 to O8, as well as the signatures appearing on the last page of each exhibit and the fact that they are true
copies of the originals.

The testimonial evidence consisted of the testimonies of Lydia Mendoza, State Audit Examiner of the Commission on Audit, for the
prosecution, and of Milda de la Peña, Trade and Industry Analyst of the Department of Trade and Industry at its South Cotabato
Provincial Office, as well as that of petitioner Kimpo himself, for the defense.

From all the evidence adduced, the Sandiganbayan concluded, thus:

Accused herein having admitted his public position as alleged in the information and the existence of a shortage of
P15,309.00 upon audit examination of his accountabilities, then what remains to be resolved only is whether any
criminal liability is attributable to him by reason of such shortage. As can be deduced from the defense evidence,
testimonial and documentary, accused lays the blame for the shortage on one Yvette Samaranos, whom he admitted
to have been retained by him as his unofficial clerk/collector in his office and who attended to the receipt of
payments for the registration of business names and issuance of certifications and official receipts for such
payments, including penalties, and fees for repair shop establishments. While the certifications and official receipts
were pre-signed by him, the collections thereunder were made by Samaranos, who also entered the amounts
collected by her in accused's cashbook.

The amounts collected between the period from July 17, 1984 to April 30, 1985 totalled P100,486.50, from which
should be deducted total remittances of P85,177.50, leaving a balance of P16,221.50. An Inventory of Cash and/or
allowed Cash Items produced P912.50, leaving a shortage of P15,309.00 which was determined by Auditor Lydia R.
Mendoza as the difference between the amounts appearing in the originals of the Official Receipts/Letter of
Confirmation and the duplicate Official Receipts. In other words, what were collected and reflected in the duplicate
ORs were not the correct amounts appearing in the original ORs issued to the payees and which were verified and
confirmed later by the payees.

Auditor Mendoza supported her findings of a shortage and the reasons for such shortage thru a formal "Comparison
of Duplicate Official Receipts of P2.00 per Report of Collections with the Confirmation Letter and/or Original Official
Receipts" for the period from July 17, 1984 to April 30, 1985. Therein, it clearly appeared that while the amounts to
be officially collected should be P110.00 or P112.00, the amounts reported to have been collected and which were
reflected in the duplicate ORs were only P2.00. The unreported and unrecorded collections of P108.00 or P110.00
from individual payees were reflected in the original ORs which were confirmed by said payees through confirmation
letters and which totalled P15,309.00.

After the cash count made by Auditor Mendoza as a prelude to her Report of Examination and subsequent
verification/confirmation, she sent a letter of demand to the accused on October 14, 1985, which the accused
received on the same date. Therein, he was required to produce immediately the balance of P3,418.50, due to the
fact that he had made deposits amounting to P11,890.50, "after cash count and confirmed by us (Please see
Scheduled 2)." On October 17, 1985, accused submitted his letter-explanation to Auditor Mendoza wherein he laid
the blame for the shortage on his office clerk whom he had already relieved and alleged that he had not benefited,
 directly or indirectly, from the missing funds. On October 18, 1985 and November 7, 1985, accused "restituted and
deposited with the Bureau of Treasury thru PNB, GSC" the amounts of P2,933.50 and P485.00, respectively, which,
if added to his previous deposits from June 2, 1985 to August 23, 1985 amounting to P11,890.50, would total
P15,309.50.

There being no dispute, therefore, as to the existence of the shortage in the accounts of the accused, as found by
Auditor Mendoza as of April 30, 1985, amounting to P15,309.00 and the fact of accused's settlement for such
shortage through installments deposited with the PNB, General Santos City between June 2, 1985 to November 7,
1985, then it behooves the Court to determine if accused herein had rendered himself liable or not under Article
217 of the Revised Penal Code by reason of such shortage. Such determination must perforce go into the merits of
his claim that the responsibility for such shortage should be laid on the doorstep of Yvette Samaranos, a private
individual, whom he inherited from his predecessor who had allowed her to work in the office as clerk-collector and
whom he retained for the following reasons: (1) the Office of the Bureau of Domestic Trade at General Santos City,
of which he was the Provincial Trade Development Officer, was a one-man operation, hence, understaffed; (2) he
had to go out to the field to campaign for increased registration of business names, hold symposiums of consumers'
groups, conduct meetings for retailers and consumers and repair shop establishments; (3) he occasionally goes out
to attend raffles conducted by private establishments as representative of the Bureau of Domestic Trade; and (4) he
had to leave someone in the office to attend to the general public in the registration and/or renewal of business
names and the issuance of certifications and official receipts for the collection of the proper fees. For the reason
that he was out in the field for days at times, he pre-signed official receipts in blank, as well as certifications, which
he entrusted to Samaranos who then fills up the said receipts and certifications and makes the corresponding entries
in his cashbook. As it turned out, however, Samaranos collected the proper official fees, issued the original receipts
with the proper amounts, filled up the duplicates thereof with reduced amounts, made the corresponding entries in
the cashbook based on the amounts reflected in the duplicates and made the proper remittances based on the
improper entries.

Accused's defense cannot be accepted, nor can it absolve him from criminal liability for the missing public funds
which the audit examination on his accountabilities as of April 30, 1985 had revealed. As Special Disbursing Officer,
he was the primary accountable officer for such funds and the fact, which was not definitely or conclusively
established by his evidence, that another person, albeit a private individual, was responsible for the
misappropriation thereof, cannot be considered in exculpation or justification of such primary accountability.

xxx xxx xxx

Consequently, accused herein cannot blame anyone else for the predicament that he found himself in. First of all,
he should not have allowed Yvette Samaranos, who did not possess any appointment, to perform official acts which
he was ordained to do. Secondly, since the collection of official fees was a sensitive area, he should have refrained
from pre-signing official receipts and certifications. Thirdly, if he were that desirous of rendering conscientious public
service, he should have ensured that the collection of official fees was properly made, recorded and remitted.
Fourthly, his admission that he had to pay the salaries of Samaranos through honoraria received by him from raffles
is fatal to his cause since he should have realized that, under such circumstance, Samaranos would be subject to the
most severe temptation to fool around with the agency's collections. Apparently, accused was more interested in
conducting field trips and raffles whereby he would be able to collect per diems, travelling allowances and honoraria
from private firms. To allow public accountable officers to adopt the practice resorted to by the accused in allowing
private individuals to perform public functions would lead to chaos and anarchy and would render nugatory all
applicable norms of public trust and accountability. His bare and unsupported claim that, after discovery of the
shortage upon audit examination, he took steps to charge Yvette Samaranos for Estafa Thru Falsification of Public
Documents does not, in any way, erase his criminal liability which could be characterized as malversation of Public
Funds through negligence. In his case, such negligence may be described as gross and inexcusable, amounting to a
definite laxity resulting in the deliberate non-performance of his duties.

On the basis of the above findings, judgment was rendered by the Sandiganbayan convicting petitioner Kimpo and sentencing him,
accordingly:

WHEREFORE, judgment is hereby rendered finding accused Luciano Kimpo y Niñanuevo GUILTY beyond reasonable
doubt of the offense of Malversation of Public Funds, as defined and penalized under Article 217, paragraph 4 of the
Revised Penal Code, and favorably appreciating the mitigating circumstances of voluntary surrender and full
restitution, after applying the Indeterminate Sentence Law, hereby sentences him to suffer an indeterminate penalty
 ranging from SEVEN (7) YEARS, FOUR (4) MONTHS and ONE (1) DAY of prision mayor as the minimum, to ELEVEN
(11) YEARS, SIX (6) MONTHS and TWENTY-ONE (21) DAYS, likewise of prision mayor as the maximum; to further
suffer perpetual special disqualification; to pay a fine of P15,309.00 equal to the amount malversed and to pay the
costs of this action. No civil liability is awarded in view of the full restitution of the amount involved.

SO ORDERED.

In this appeal, petitioner submitted the following assignment of errors: That —

THE RESPONDENT COURT ERRED IN LAW WHEN IT CONSIDERED EXHIBITS B TO B-3 AGAINST THE ACCUSED OVER
ACCUSED'S OBJECTIONS ANCHORED ON ARTICLE III, SECTIONS 12 & 17 OF THE 1987 CONSTITUTION.

II

THE RESPONDENT COURT ERRED IN LAW WHEN IT CONSIDERED — OVER PETITIONER'S OBJECTIONS — ALLEGED
CONFIRMATION LETTERS NOT SIGNED OR NOT PROPERLY IDENTIFIED, AS EVIDENCE TO PROVE ALLEGED SHORTAGE.

III

THE RESPONDENT COURT ERRED IN LAW WHEN IT RULED THAT ACCUSED IS PRESUMED TO HAVE MALVERSED
P15,309.00 BECAUSE HE FAILED TO HAVE THE AMOUNT FORTHCOMING UPON DEMAND.

IV

THE RESPONDENT COURT ERRED IN LAW IN HOLDING ACCUSED LIABLE FOR MALVERSATION OF PUBLIC FUNDS
THROUGH NEGLIGENCE.

The appeal has no merit.

Petitioner faults the Sandiganbayan for having considered Exhibits "B" to "B-3," inclusive, despite what he claims to be an impairment
of his constitutional rights under Article III, Section 12 paragraphs (1) and (3), and Section 17, 2 of the 1987 Constitution. We cannot
agree. The questioned exhibits pertain to the Report of Examination, the Statement of Accountability for Accountable Forms without
Money Value, and a Reconciliation Statement of Accountability, which are official forms prepared and accomplished in the normal
course of audit regularly conducted by the Commission on Audit. Petitioner, not being at the time under investigation for the
commission of a criminal offense, let alone under custodial investigation, clearly cannot be said to have been deprived of the
constitutional prerogatives he invokes (Villaroza vs. Sandiganbayan, G.R. No. 79636, 17 December 1987; People vs. Olivares, 186 SCRA
536).

On the so-called confirmatory letters, respondent court concluded thus —

III. The Letters of Confirmation (Exhibits Z to II, JJ to SS, TT to GGG, HHH to WWW, XXX to ZZZZ, AAAA to JJJJJ, KKKKK
to KKKKKKK to JJJJJJJJ and JJJJJJJJ) were not the primary evidence presented by the prosecution to prove the
manipulations and irregularities in question but the originals and duplicates of the Official Receipts (Exhibits L to I-
40, J to J-95, K to K-26 and L to L-44), all of which were admittedly signed by the accused, wherein it could clearly be
seen that payments for P110.00 were reflected as P2.00 only. Thus, the Letters of Confirmation are only secondary
evidence to support and prove the principal facts in issue. Accused had not, REPEAT, had not, denied that the above-
mentioned official receipts, originals and duplicates, are genuine and correctly reflect the amounts which appear to
be listed therein.

Hardly can the above findings be validly challenged. Indeed, considering all the evidence on record, there is not much that the
questioned letters could have lent to augment the case for the prosecution.

Petitioner has been charged with having violated Article 217 of the Revised Penal Code, which, in full, reads:
 Art. 217. Malversation of public funds or property. — Presumption of malversation. — Any public officer who, by
reason of the duties of his office, is accountable for public funds or property, shall appropriate the same, or shall
take or misappropriate or shall consent, or through abandonment or negligence, shall permit any other person to
take such public funds or property, wholly or partially, or shall otherwise be guilty 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 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 use.

The validity and constitutionality of the presumption of evidence provided in the above Article, which petitioner questions, has long
been settled affirmatively in a number of cases heretofore decided by this Court; 3 that point need not again be belabored.

Even while an information charges willful malversation, conviction for malversation through negligence may, nevertheless, be
adjudged as the evidence so yields. Malversation, unlike other felonies punished under the Revised Penal Code, is consummated, and
the same penalty is imposed, regardless of whether the mode of commission is with intent or due to negligence. 4

Petitioner argues that the restitution made by him of the full amount should exonerate him from criminal liability. The argument not
only is an inappropriate defense in criminal cases but it also even at times tightens a finding of guilt. In malversation of public funds,
payment, indemnification, or reimbursement of funds misappropriated, after the commission of the crime, does not extinguish the
criminal liability of the offender which, at most, can merely affect the accused's civil liability thereunder 5 and be considered a
mitigating circumstance being analogous to voluntary surrender. 6

WHEREFORE, the petition is DISMISSED, and the appealed decision of respondent Sandiganbayan is AFFIRMED in toto.

SO ORDERED.

G.R. No. 192330 November 14, 2012

ARNOLD JAMES M. YSIDORO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

ABAD, J.:

This case is about a municipal mayor charged with illegal diversion of food intended for those suffering from malnutrition to the
beneficiaries of reconsideration projects affecting the homes of victims of calamities.
The Facts and the Case

The Office of the Ombudsman for the Visayas accused Arnold James M. Ysidoro before the Sandiganbayan in Criminal Case 28228 of
violation of illegal use of public propertry (technical malversation) under Article 220 of the Revised Penal Code.1

The facts show that the Municipal Social Welfare and Development Office (MSWDO) of Leyte, Leyte, operated a Core Shelter
Assistance Program (CSAP) that provided construction materials to indigent calamity victims with which to rebuild their homes. The
beneficiaries provided the labor needed for construction.

On June 15, 2001 when construction for calamity victims in Sitio Luy-a, Barangay Tinugtogan, was 70% done, the beneficiaries stopped
reporting for work for the reason that they had to find food for their families. This worried Lolita Garcia (Garcia), the CSAP Officer-in-
Charge, for such construction stoppage could result in the loss of construction materials particularly the cement. Thus, she sought the
help of Cristina Polinio (Polinio), an officer of the MSWDO in charge of the municipality’s Supplemental Feeding Program (SFP) that
rationed food to malnourished children. Polinio told Garcia that the SFP still had sacks of rice and boxes of sardines in its storeroom.
And since she had already distributed food to the mother volunteers, what remained could be given to the CSAP beneficiaries.

Garcia and Polinio went to petitioner Arnold James M. Ysidoro, the Leyte Municipal Mayor, to seek his approval. After explaining the
situation to him, Ysidoro approved the release and signed the withdrawal slip for four sacks of rice and two boxes of sardines worth
P3,396.00 to CSAP.2 Mayor Ysidoro instructed Garcia and Polinio, however, to consult the accounting department regarding the
matter. On being consulted, Eldelissa Elises, the supervising clerk of the Municipal Accountant’s Office, signed the withdrawal slip
based on her view that it was an emergency situation justifying the release of the goods. Subsequently, CSAP delivered those goods
to its beneficiaries. Afterwards, Garcia reported the matter to the MSWDO and to the municipal auditor as per auditing rules.

On August 27, 2001 Alfredo Doller, former member of the Sangguniang Bayan of Leyte, filed the present complaint against Ysidoro.
Nierna Doller, Alfredo's wife and former MSWDO head, testified that the subject SFP goods were intended for its target beneficiaries,
Leyte’s malnourished children. She also pointed out that the Supplemental Feeding Implementation Guidelines for Local Government
Units governed the distribution of SFP goods.3 Thus, Ysidoro committed technical malversation when he approved the distribution of
SFP goods to the CSAP beneficiaries.

In his defense, Ysidoro claims that the diversion of the subject goods to a project also meant for the poor of the municipality was valid
since they came from the savings of the SFP and the Calamity Fund. Ysidoro also claims good faith, believing that the municipality’s
poor CSAP beneficiaries were also in urgent need of food. Furthermore, Ysidoro pointed out that the COA Municipal Auditor conducted
a comprehensive audit of their municipality in 2001 and found nothing irregular in its transactions.

On February 8, 2010 the Sandiganbayan found Ysidoro guilty beyond reasonable doubt of technical malversation. But, since his action
caused no damage or embarrassment to public service, it only fined him P1,698.00 or 50% of the sum misapplied. The Sandiganbayan
held that Ysidoro applied public property to a pubic purpose other than that for which it has been appropriated by law or ordinance.
On May 12, 2010 the Sandiganbayan denied Ysidoro’s motion for reconsideration. On June 8, 2010 Ysidoro appealed the
Sandiganbayan Decision to this Court.

The Questions Presented

In essence, Ysidoro questions the Sandiganbayan’s finding that he committed technical malversation. He particularly raises the
following questions:

1. Whether or not he approved the diversion of the subject goods to a public purpose different from their originally intended
purpose;

2. Whether or not the goods he approved for diversion were in the nature of savings that could be used to augment the other
authorized expenditures of the municipality;

3. Whether or not his failure to present the municipal auditor can be taken against him; and

4. Whether or not good faith is a valid defense for technical malversation.

The Court’s Rulings

One. The crime of technical malversation as penalized under Article 220 of the Revised Penal Code 4 has three elements: a) that the
offender is an accountable public officer; b) that he applies public funds or property under his administration to some public use; and
c) that the public use for which such funds or property were applied is different from the purpose for which they were originally
appropriated by law or ordinance.5 Ysidoro claims that he could not be held liable for the offense under its third element because the
four sacks of rice and two boxes of sardines he gave the CSAP beneficiaries were not appropriated by law or ordinance for a specific
purpose.

But the evidence shows that on November 8, 2000 the Sangguniang Bayan of Leyte enacted Resolution 00-133 appropriating the
annual general fund for 2001. 6 This appropriation was based on the executive budget7 which allocated P100,000.00 for the SFP and
P113,957.64 for the Comprehensive and Integrated Delivery of Social Services8 which covers the CSAP housing projects.9 The creation
of the two items shows the Sanggunian’s intention to appropriate separate funds for SFP and the CSAP in the annual budget.

Since the municipality bought the subject goods using SFP funds, then those goods should be used for SFP’s needs, observing the rules
prescribed for identifying the qualified beneficiaries of its feeding programs. The target clientele of the SFP according to its
manual10 are: 1) the moderately and severely underweight pre-school children aged 36 months to 72 months; and 2) the families of
six members whose total monthly income is P3,675.00 and below.11 This rule provides assurance that the SFP would cater only to the
malnourished among its people who are in urgent need of the government’s limited resources.

Ysidoro disregarded the guidelines when he approved the distribution of the goods to those providing free labor for the rebuilding of
their own homes. This is technical malversation. If Ysidoro could not legally distribute the construction materials appropriated for the
CSAP housing beneficiaries to the SFP malnourished clients neither could he distribute the food intended for the latter to CSAP
beneficiaries.

Two. Ysidoro claims that the subject goods already constituted savings of the SFP and that, therefore, the same could already be
diverted to the CSAP beneficiaries. He relies on Abdulla v. People12 which states that funds classified as savings are not considered
appropriated by law or ordinance and can be used for other public purposes. The Court cannot accept Ysidoro’s argument.

The subject goods could not be regarded as savings. The SFP is a continuing program that ran throughout the year. Consequently, no
one could say in mid-June 2001 that SFP had already finished its project, leaving funds or goods that it no longer needed. The fact that
Polinio had already distributed the food items needed by the SFP beneficiaries for the second quarter of 2001 does not mean that the
remaining food items in its storeroom constituted unneeded savings. Since the requirements of hungry mouths are hard to predict to
the last sack of rice or can of sardines, the view that the subject goods were no longer needed for the remainder of the year was quite
premature.

In any case, the Local Government Code provides that an ordinance has to be enacted to validly apply funds, already appropriated for
a determined public purpose, to some other purpose. Thus:

SEC. 336. Use of Appropriated Funds and Savings. – Funds shall be available exclusively for the specific purpose for which they have
been appropriated. No ordinance shall be passed authorizing any transfer of appropriations from one item to another. However, the
local chief executive or the presiding officer of the sanggunian concerned may, by ordinance, be authorized to augment any item in
the approved annual budget for their respective offices from savings in other items within the same expense class of their respective
appropriations.

The power of the purse is vested in the local legislative body. By requiring an ordinance, the law gives the Sanggunian the power to
determine whether savings have accrued and to authorize the augmentation of other items on the budget with those savings.

Three. Ysidoro claims that, since the municipal auditor found nothing irregular in the diversion of the subject goods, such finding
should be respected. The SB ruled, however, that since Ysidoro failed to present the municipal auditor at the trial, the presumption is
that his testimony would have been adverse if produced. Ysidoro argues that this goes against the rule on the presumption of
innocence and the presumption of regularity in the performance of official functions.

Ysidoro may be right in that there is no basis for assuming that had the municipal auditor testified, his testimony would have been
adverse to the mayor. The municipal auditor’s view regarding the transaction is not conclusive to the case and will not necessarily
negate the mayor’s liability if it happened to be favorable to him. The Court will not, therefore, be drawn into speculations regarding
what the municipal auditor would have said had he appeared and testified.
Four. Ysidoro insists that he acted in good faith since, first, the idea of using the SFP goods for the CSAP beneficiaries came, not from
him, but from Garcia and Polinio; and, second, he consulted the accounting department if the goods could be distributed to those
beneficiaries. Having no criminal intent, he argues that he cannot be convicted of the crime.1âwphi1

But criminal intent is not an element of technical malversation. The law punishes the act of diverting public property earmarked by
law or ordinance for a particular public purpose to another public purpose. The offense is mala prohibita, meaning that the prohibited
act is not inherently immoral but becomes a criminal offense because positive law forbids its commission based on considerations of
public policy, order, and convenience. 13 It is the commission of an act as defined by the law, and not the character or effect thereof,
that determines whether or not the provision has been violated. Hence, malice or criminal intent is completely irrelevant. 14

Dura lex sed lex. Ysidoro’s act, no matter how noble or miniscule the amount diverted, constitutes the crime of technical malversation.
The law and this Court, however, recognize that his offense is not grave, warranting a mere fine.

WHEREFORE, this Court AFFIRMS in its entirely the assailed Decision of the Sandiganbayan in Criminal Case 28228 dated February 8,
2010.

SO ORDERED.