THIRD DIVISION

 

JOSE T. TUBOLA, JR.,

Petitioner,

 

 

 

- versus -

 

 

 

SANDIGANBAYAN AND

PEOPLE OF THE

PHILIPPINES,

Respondents.

 

G.R. No. 154042

 

Present:

 

CARPIO MORALES, J.,

Chairperson,

BRION,

BERSAMIN,

VILLARAMA, JR., and

SERENO, JJ.

Promulgated:

April 11, 2011

 

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

 

 

D E C I S I O N

 

 

CARPIO MORALES, J.:

 

Jose Tubola, Jr. (petitioner) appeals the December 7, 2000 Decision[1] and June 10, 2002 Resolution of the Sandiganbayan in Criminal Case No. 12015 which found him guilty of Malversation of Public Funds penalized under Article 217 of the Revised Penal Code, committed as follows:

 

That within the period from June 25, 1982 up to November 8, 1982, and for sometime prior thereto, in Iloilo City, Philippines and within the jurisdiction of this Honorable Court, the said accused who was a duly appointed cashier/collecting officer of the National Irrigation System, Iloilo City and as such was an accountable public officer for public funds that were in his official custody by reason of his official position, did then and there, wilfully, unlawfully and feloniously, with grave abuse of confidence misappropriate and convert to his own personal use and benefit the amount of NINE THREE THOUSAND FIFTY ONE PESOS AND EIGHTY- EIGHT CENTAVOS P93,051.88 to the damage and prejudice of the government.

 

CONTRARY TO LAW.[2] (emphasis and underscoring supplied)

 

Petitioner was the cashier of the National Irrigation Administration (NIA)-Aganan, Sta. Barbara River Irrigation System in Iloilo City. On November 8, 1982, Commission on Audit (COA) State Auditing Examiners Yvonne Gotera (Gotera) and Theresita Cajita (Cajita) conducted an audit examination of petitioners account which indicated a shortage of P93,051.88.[3]

 

Gotera and Cajita thus sent a letter of demand dated November 23, 1982 to petitioner directing him to account for the shortage.[4] Petitioner refused to receive the letter, however, hence, Gotera and Cajita sent it by registered mail.[5]

 

Petitioner was thereupon charged of committing malversation of public funds before the Sandiganbayan to which he pleaded not guilty.[6]

 

By the account of Gotera, the lone witness for the prosecution, petitioner had an account balance of P30,162.46 prior to June 25, 1982; that from June 25 to November 8, 1982, the date petitioners account was audited, his cash collections totaled P347,995.64; that his remittances from June 25 to November 8, 1982 totaled P285,105.41; and that the total collections less total remittances amounted to P93,051.88 as of November 8, 1982.[7]

 

Still by Goteras account, the audit team found in petitioners drawer vales/chits or promissory notes or receivables signed by NIA employees involving the total amount of P79,044.51.[8]

 

Petitioner, who claimed that he was assigned as cashier since 1978 and was also in charge of payment of salaries of more than 2,000 field employees in the NIA Jalaur Project, declared that his task of keeping the collected irrigation fees was temporarily assigned to Editha Valeria (Valeria) upon instruction of his superior, Regional Director Manuel Hicao,[9] for he (petitioner) was also handling the payroll of around 2,000 employees.

 

Petitioner further declared that no accounting of the collected fees was undertaken since he trusted Valeria, who directly remitted them to the bank, after he signed the statement of collection without reading the contents thereof. [10]

 

Petitioner presented vales and chits involving the total amount of P115,661.66 representing loans extended by Valeria to certain NIA employees and even COA auditors.[11] And he identified chits and vales dated 1975 to 1981 inclusive representing loans extended prior to the audit period.[12]

 

By Decision of December 7, 2000,[13] the Sandiganbayan convicted petitioner as charged, disposing as follows:

 

WHEREFORE, the guilt of the accused, JOSE TUBOLA, JR., having been proven beyond reasonable doubt, the Court hereby CONVICTS him of the crime of Malversation of Public Funds penalized under Article 217 of the Revised Penal Code. Appreciating in his favor the mitigating circumstance of voluntary surrender, without any aggravating circumstance to offset the same, and applying the Indeterminate Sentence Law, the accused is hereby sentenced to suffer the indeterminate penalty of TEN (10) years and ONE (1) day of Prision Mayor as Minimum, to SEVENTEEN (17) years, FOUR (4) months of Reclusion Temporal as Maximum, and the accessory penalties provided for by law.

 

He is likewise ordered to indemnify the Republic of the Philippines the amount of Ninety Three Thousand Fifty One Pesos and Eighty Eight Centavos (P93,051.88); to pay a fine in the same amount, which is the amount of money malversed and the costs of suit, and finally to suffer perpetual disqualification to hold public office.

 

SO ORDERED.[14] (Capitalization, italics and emphasis in the original)

 

His motion for reconsideration having been denied,[15] petitioner lodged the present appeal, imputing error on the Sandiganbayan for

 

I

 

. . . CONCLUD[ING] THAT [HE] FAILED TO REBUT THE PRESUMPTION UNDER ARTICLE 217 OF THE REVISED PENAL CODE . . .

 

II

 

. . . CONCLUDING THAT [HE] HAS COMMITTED INEXCUSABLE NEGLIGENCE IN DELEGATING THE CUSTODY OF THE ACCOUNT TO [AN]OTHER PERSON.

 

III

 

. . . RENDERING JUDGMENT OF CONVICTION NOTWITHSTANDING THE FACT THAT IT HAS BEEN CLEARLY ESTABLISHED THAT [HE] IS NOT AN ACTUAL AND POTENTIAL WRONGDOER.

 

IV

 

. . . VIOLAT[ING] [HIS] BASIC CONSTITUTIONAL RIGHT TO DUE PROCESS WHEN IT ACTIVELY TOOK PART IN THE QUESTIONING OF THE ACCUSED WHEN HE WAS PRESENTED AS A WITNESS.[16]

 

 

To petitioner, the evidence adduced at the trial had overcome the legal presumption that he put the missing funds to his personal use. There is, he argues, incontrovertible fact that [he] ha[d] not received any single centavo in the form of irrigation fees since the collections were actually received by Valeria.[17]

 

According to petitioner, he being the superior of Valeria, he had to rely on her honesty and competence in the performance of her duties. He cites Arias v. Sandiganbayan,[18] which ruled that a head of office is not required to examine every single detail of any transaction from its inception until it is finally approved, to deem it no longer necessary for him to examine all the details each time a remittance of the fees was made.

 

Petitioner even posits that the Sandiganbayan was unsure whether he was guilty of malversation intentionally or through negligence.

 

In fine, petitioner insists that as the primary task of collecting the irrigation fees was the responsibility of Valeria, he cannot be faulted for negligence.[19]

 

Further, petitioner posits that he was neither an actual or potential wrongdoer and, absent criminal intent, he should not be convicted with the full harshness of the law.[20]

 

Finally, petitioner points out that his right to due process was violated, the Justices of the Sandiganbayan having actively participated in the criminal proceedings by tak[ing] into their own hands in proving the case against [him].[21]

 

The People, through the Special Prosecutor, draws attention to the failure of petitioner to present Valeria to shed light on her actual duties, or to at least present a certification from then Regional Director Manuel Hicao, who allegedly ordered Valeria to take over from petitioner the duty of collecting irrigation fees. To the People, petitioners self-serving testimony failed to controvert the legal presumption of misappropriation.[22]

 

The People goes on to contend that petitioner may still be convicted of malversation by negligence even if the Information alleged the commission of intentional malversation since the dolo or culpa present in the offense is only a modality in the perpetration of the felony.[23]

 

Respecting the supposed violation of petitioners right to due process in light of the alleged active participation of the Sandiganbayan Justices in questioning him during the hearing of the case, the People underscores that it is the duty of a trial judge to examine a witness to secure a full and clear understanding of the facts or to test to his satisfaction the credibility of the witness[24]

 

Article 217 of the Revised Penal Code provides:

 

Art. 217. Malversation of public funds or property. Presumption of malversation. - Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or negligence, shall permit any other person to take such public funds or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property, shall suffer:

 

1.                   The penalty of prision correccional in its medium and maximum periods, if the amount involved in the misappropriation or malversation does not exceed two hundred pesos.

 

2.                    The penalty of prision mayor in its minimum and medium periods, if the amount involved is more than two hundred pesos but does not exceed six thousand pesos.

 

3.                     The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period, if the amount involved is more than six thousand pesos but is less than twelve thousand pesos.

 

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

 

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

 

The failure of a public officer to have duly forthcoming any public fund or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal uses. (italics in the original, emphasis and underscoring supplied)

 

 

 

The elements of malversation of public funds are thus:

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.[25]

 

 

All the above-mentioned elements are here present. Petitioner was a public officer[26] ─ he occupied the position of cashier at the NIA. By reason of his position, he was tasked to regularly handle irrigation fees, which are indubitably public funds pertaining to the NIA, and to remit them to the depositary bank.

 

As established by the prosecution, petitioner was the one who remitted irrigation fees collected from June 25, 1982 to October 31, 1983[27] inclusive, so that even if the Court were to credit petitioners allegation that Valeria had actually taken over his function of collecting the irrigation fees, the collections were still, in fact by his admission, turned over to him.

 

Q: How about the money after this payment for irrigation fees are entered in the Collection Book for which Ms. Edita Valeria is the one in charge, who keeps the money being paid for irrigation fees?

 

A: She is the one holding the money turned over to her by the farmers who paid their irrigation fees, sir. I am just reporting in my office every 7th, 15th.

 

PJ GARCHITORENA

Confine your answer to the question. Who keeps the irrigation fees being collected?

 

A: Edita Valeria, your Honor.

 

PJ GARCHITORENA

 

Q: Is that part of her functions?

 

WITNESS

 

A: No, your Honor.

 

Q: Whose function is it to keep the irrigation fees?

 

A: My function, your Honor.

 

x x x x.

 

Q: After Edita Valeria receives the money representing the irrigation fees of farmers, does she turn over the collections to you?

 

A: Yes, sir.[28] (Emphasis and underscoring supplied)

 

In fact, petitioners admission that his signature was required before remitting the irrigation fees to the depositary bank reinforces the fact that he had complete control and custody thereof.

 

WITNESS

 

A: Everytime she reported to me, she just fold [sic] the page of the collection book and he [sic] tells [sic] me, this is okay and you can just sign this statement of collection.

 

PJ GARCHITORENA

 

Q: So you are being made to sign a statement of collection without looking at the supporting documents to validate the correctness of the figures nor even to determine whether the figures there and the ones remitted to the Philippine National Bank?

 

A: Yes, your Honor. I just asked her, Is this accounting okay? and she said Yes.[29] (emphasis and underscoring supplied)

 

 

As to the element of misappropriation, indeed petitioner failed to rebut the legal presumption that he had misappropriated the fees to his personal use, his disclaimer being self-serving.

Why, indeed, Valeria, whom petitioner had pointed to as having full responsibility for the collections, including their deposit to the bank, covered by the audit period, was never presented to corroborate his claim dents his defense as does his failure to present the Regional Director or a certification from him for the same purpose.

 

As for petitioners explanation that the unaccounted fees were extended as loans to employees as evidenced by vales and chits found in his drawer which involved a total of P79,044.51, it fails. If this claim were true, petitioner could have at least promptly collected them, and/or offered the testimonies of the employees-obligors to prove good faith on his part.

 

As for the vales and chits that he offered in evidence, as the same were admittedly incurred before the period of audit, they are immaterial, as correctly observed by the Sandiganbayan:

 

PROS GALINDEZ

Q: Mr. Witness, since these chits and vales were incurred before the period [covered by the ] audit, you could not have possibly used the money collected by you in your capacity as Cashier for the period from June 25, 1982 to November 8, 1982.

 

A: Yes, sir. I have told you before that Mrs. Valeria is the one handling my collections. I am just concentrating on my disbursements. I have two disbursement books and my collection book is handled by Mrs. Valeria including the payments and

 

x x x x.

 

Q: So that these chits and vales which were merely listed by the Auditing Examiners as they were found inside your safe are irrelevant to the accusation?

 

WITNESS

 

A: Where can Mrs. Valeria get the cash to extend vales, sir? Because my collection book is balance as found by the examiners. So, she herself extended vales from her collections.

 

Q: Mr. Witness, we are speaking about the chits and vales which you extended.

 

PJ GARCHITORENA

 

It is clear that the accused is being charged for shortage covered by the period June 25, 1982 to November 8, 1982 and that Exhibit 1 series refers to accounts prior to that period of audit so that you have a point. You have covered that point already.

 

PROS GALINDEZ

 

Q: This inventory of cash and cash items which is from 1975 to 1981, did you attempt to collect this from the payees?

 

A: No, sir.[30] (emphasis and underscoring supplied)

 

Petitioners assertion, vis--vis his citation of the ruling in Arias, that he was the superior of Valeria was later belied by him:

 

Q: But she [referring to Valeria] is under your direct supervision?

 

A: Under the Chief of Office, the Irrigation Superintendent.[31]

 

Aside then from the lack of a superior-subordinate relationship with Valeria, the circumstances obtaining in Arias and the present case are entirely different. Arias involved the culpability of a final approving authority on the basis of criminal conspiracy, whereas the present case involves petitioners culpability on the basis of his being the accountable public officer.

 

On petitioners assertion that the Sandiganbayan erred in concluding that he committed malversation through inexcusable negligence when the Information alleges intentional malversation, it does not impress.

 

To be sure, the Sandiganbayan convicted petitioner for intentional malversation on the basis of his failure to refute the presumption that he converted the money to his personal use. Petitioner misreads the assailed Decision since the discussion about his culpability for malversation through inexcusable negligence was merely academic in light of the postulation that a subordinate (Valeria) was at fault.[32]

 

Nonetheless, in Cabello v. Sandiganbayan,[33] the Court ratiocinated that:

 

On the other hand, petitioner contends that the bulk of said amount represented "vales" he granted to the postal employees and the minor portion consisted of unremitted, unreimbursed or uncollected amounts. His very own explanation, therefore, shows that the embezzlement, as claimed by the prosecution, or the expenditures, as posited by him, were not only unauthorized but intentionally and voluntarily made. Under no stretch of legal hermeneutics can it be contended that these funds were lost through abandonment or negligence without petitioner's knowledge as to put the loss within a merely culpable category. From the contention of either party, the misappropriation was intentional and not through negligence.

 

Besides, even on the putative assumption that the evidence against petitioner yielded a case of malversation by negligence but the information was for intentional malversation, under the circumstances of this case his conviction under the first mode of misappropriation would still be in order. Malversation is committed either intentionally or by negligence. The dolo or the culpa present in the offense 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 involved and conviction thereof is proper. A possible exception would be when the mode of commission alleged in the particulars of the indictment is so far removed from the ultimate categorization of the crime that it may be said due process was denied by deluding the accused into an erroneous comprehension of the charge against him. That no such prejudice was occasioned on petitioner nor was he beleaguered in his defense is apparent from the records of this case.[34] (italics in the original, emphasis and underscoring supplied)

 

Finally, petitioners claim of violation of his right to due process vis--vis the Sandiganbayan Justices active participation during the trial fails too. For he has not specified any instance of supposed bias of the Justices, or cited what questions adversely affected him. The record does not reflect any question or objection raised by petitioners counsel during the trial to the Justices questions or the tenor or manner they were propounded. Nor does the record reflect any move to inhibit the Justices if petitioner perceived that they were biased against him.

 

That a magistrate may propound clarificatory questions to secure a full and clear understanding of the facts in the case is not proscribed.[35]

 

 

 

 

 

WHEREFORE, the petition is DENIED. The December 7, 2000 Decision and June 10, 2002 Resolution of the Sandiganbayan in Criminal Case No. 12015 are AFFIRMED.

SO ORDERED.

 

 

 

CONCHITA CARPIO MORALES

Associate Justice

 

 

 

 

WE CONCUR:

 

 

 

 

 

 

 

ARTURO D. BRION

Associate Justice

 

LUCAS P. BERSAMIN

Associate Justice

 

 

 

 

 

 

 

MARTIN S. VILLARAMA, JR.

Associate Justice

 

 

 

 

 

 

MARIA LOURDES P. A. SERENO

Associate Justice

 

 

 

 


 

 

 

 

ATTESTATION

 

 

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

 

CONCHITA CARPIO MORALES

Associate Justice

Chairperson

 

 

 

 

 

 

CERTIFICATION

 

 

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, I certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

 

 

 

RENATO C. CORONA

Chief Justice


 

 

 

 



[1] Rollo, pp. 38-56. Penned by Associate Justice Anacleto D. Badoy, Jr. (now retired) with Associate Justices Minita V. Chico-Nazario (now a retired member of the Court) and Ma. Cristina Cortez-Estrada (now retired).

[2] Records, Volume I, p. 1; Information dated November 25, 1986.

[3] Report of Examination; Exhibit A, Folder of Exhibits.

[4] Exhibit C, Folder of Exhibits.

[5] Exhibits C-1 and C-2, Folder of Exhibits.

[6] Records, Vol. I, p. 207.

[7] TSN, August 26, 1988, p. 11.

[8] TSN, November 22, 1988, pp. 5-6.

[9] TSN, Oct. 11, 1990, pp. 6-9.

[10] Id. at 9-11.

[11] Id. at 33-34.

[12] Id. at 34-36,

[13] Rollo, pp. 38-56.

[14] Id. at 55.

[15] Resolution of June 10, 2002, pp. 57-59.

[16] Id. at 14-15.

[17] Id. at 16-22.

[18] G.R. No. 81563, December 19, 1989, 180 SCRA 390.

[19] Rollo, pp. 26-27.

[20] Id. at 29-30.

[21] Id. at 31.

[22] Id. at 94-97.

[23] Id. at 103-104.

[24] Id. at 106-107.

[25] Ocampo III v. People, G.R. Nos. 156547-51, February 4, 2008, 543 SCRA 487.

[26] Art. 203 of the Revised Penal Code states that: Who are public officers. - For the purpose of applying the provisions of this and the preceding titles of this book, any person who, by direct provision of the law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, or shall perform in said Government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class, shall be deemed to be a public officer.

[27] TSN, November 22, 1988, pp. 3-5. See also Exhibit A-2 or the Schedule of Validated Remittances of the Folder of Exhibits.

[28] TSN, October 11, 1990, pp. 8-9.

[29] Id. at 11.

[30] Id. at 35-36.

[31] Id. at 34.

[32] The Sandiganbayan Decision states: x x x x Assuming arguendo that his assistant was the one at fault, the glaring truth is that the custody of the same remains his ultimate responsibility and accountability. His purported trust and confidence in Valeria only serves to establish his inexcusable negligence. x x x x

[33] G.R. No. 93885, May 14, 1991, 197 SCRA 94.

[34] Id. at 103.

[35] People v. Hatton, G.R. No. 85043, June 16, 1984, 210 SCRA 1.