D E C I SI ON

REPUBLIC OF THE PHILIPPINESSANDIGANBAYAN

Quezon City --------------------

First Division

PEOPLE OF THE PHILIPPINES, Plaintiff,

- versus -

ISIDRO T. REYES,Municipal Mayor,

Mambajao, Camiguin, Accused.

Criminal Case No. 26892

Present: LEONARDO-DE CASTRO, PJ, Chairperson PERALTA and GESMUNDO, JJ.

Promulgated: August 15, 2006

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D E C I S I O N

GESMUNDO, J.:

The accused, Isidro T. Reyes, a public officer, being the municipal mayor of Mambajao, Camiguin at the time material to this case, is charged with Malversation of Public Property under Article 217 of the Revised Penal Code (RPC), as amended by Republic Act No. 10601, in an Information dated 30 August 2001:

“That on or about 23 October 2000, or shortly prior to or subsequent thereto, in the Municipality of Mambajao, Province of Camiguin, Philippines, and within the jurisdiction of this Honorable Court, above-named accused ISIDRO T. REYES, a high-ranking public officer, being then the Municipal Mayor of the Municipality of Mambajao, Camiguin, and as such is responsible and accountable for

1 An Act Increasing the Penalty For the Crime of Malversation of Public Funds or Property, by Amending Article Two Hundred Seventeen of the Revised Penal Code.

DECISIONCriminal Case No. 26892People vs. Isidro T. ReyesPage 2 of 28x-----------------------------x

the properties received by him by reason of the duties of his office, and who was entrusted and officially issued with one (1) unit 9MM Pistol (Beretta), with Serial No. M17849Z, two (2) pieces of magazine, and twenty five (25) rounds of 9 MM ammunitions, did then and there willfully, unlawfully and feloniously, through abandonment or negligence, permit any other person to take away, embezzle or appropriate the aforestated public properties with a total value of P42,375.00; and despite repeated official demands from the Philippine National Police (PNP) Mambajao Police Station, Mambajao, Camiguin, directing him to turn-over the said properties, said accused failed to yield and/or turn-over the same, thereby, causing damage and prejudice to the Government and public interest.

CONTRARY TO LAW.”2

Before the date of the scheduled arraignment, the accused moved to dismiss the case on the ground that he had paid for the value of the lost firearm upon advise of the Regional Directors of the Commission on Audit (COA) and the Philippine National Police (PNP) of Region 10 and that after such payment the case against him shall be considered closed.3

The Court in its Order dated 17 January 1997 declared that the subsequent restitution or the belated payment of the value of the property alleged to have been malversed cannot operate to exonerate the accused from criminal liability for malversation of public property and subsequently ordered that his arraignment should proceed as scheduled.4

Consequently, the accused was arraigned on 17 January 2002 and with the assistance of his counsel de parte, pleaded not guilty.5

2 Record, p. 1.3 Id at 61-63.4 Id. at 72.5 Id. at 71.


On 2 September 2003, the parties submitted their Joint Stipulation of Facts and Issues6 and upon receipt thereof, the Court deemed the pre-trial terminated. 7

Trial ensued with the prosecution presenting its testimonial and documentary evidence culminating with its written Formal Offer of Evidence dated 27 February 2004.8

Over the objection of the accused,9 the Court resolved to admit all the exhibits offered as part of the testimony of the prosecution witnesses considering that the existence of all the said exhibits was admitted by the accused in his objection/comments to the prosecution’s written formal offer of evidence.10 Moreover, at the pre-trial, the accused admitted the due execution of Exhibits “B” to “I”.

After the prosecution rested its case, accused took the witness stand. This was followed by his formal offer of evidence consisting of Exhibits “1” to “8” which the Court admitted as part of his testimony and over the objections of the prosecution in view of the admissions made by the latter in open court and in the pre-trial.11

Thereafter, the prosecution having manifested that it was not submitting any rebuttal evidence, the Court directed the parties to submit simultaneously their respective memoranda.12 The prosecution and the defense complied with the directive on 1 April 2005 and 6 April 2005,

6 Records, pp. 175-182.7 Id at 209. 8 Id at 247-254.9 Id at 257-258.10 Id at 265.11 Id at 317-B.12 Id.


respectively;13 hence, the case is now deemed submitted for decision.14

DISCUSSION

Evidence of the ProsecutionThe prosecution claims that there is overwhelming

evidence showing that the accused, Isidro T. Reyes, has committed the crime of malversation of public funds as defined and penalized under Article 217 of the RPC.

First, the accused had received and thereafter had in his custody one unit 9 mm. pistol berretta bearing serial number M17849Z, two pieces of magazine and 25 rounds of 9 mm ammunition (subject properties) as evidenced by the Memorandum Receipt dated 12 April 1999 duly signed by him.15

This was not denied by the accused and, in fact, he acknowledged receipt of subject properties in the Affidavit of Loss he executed which the defense even offered and marked as Exhibit “4.” The subject properties were personally delivered by SPO4 Antonio Cabrera Chan (SPO4 Chan) and SPO3 Paul A. Bacor (SPO3 Bacor) in the residence of the accused on the date indicated in said memorandum receipt.16 This fairly illustrated accused’s receipt and custody of the subject properties which under the law he is accountable for.

13 Record, pp. 320-350; 351-357.14 Id at 317-B.15 Exhibit “B” for the prosecution.16 Testimony of SPO4 Chan, TSN, 2/27/04, pp. 11-13.


Second, the accused failed to return the subject property when required to do so by Chief Inspector Teodorico B. Gallego (Chief Inspector Gallego) of the Mambajao Police Station in compliance with the radio message from the regional headquarters of the Philippine National Police dated 6 October 2000 to recall all issued 9mm pistols together with magazines and ammunition.17

Chief Inspector Gallego testified that he sent a letter18 to accused requesting the latter to turn-in the subject properties to the PNP. Accused, however, was unable to return the subject properties and submitted instead an Affidavit of Loss19 dated 23 October 2000 claiming that the subject properties, which were kept inside the mayor’s office, could no longer be found.

The PNP, through Officer-in-Charge SPO4 Chan, wrote another letter to the accused on 3 March 2001 to return the subject properties in pursuance of the directive contained in the radio message20 dated 2 March 2001 from the PNP Regional Headquarters to recall subject properties for subsequent turn-over to the PNP.21 In response, the accused requested22 on 7 March 2001 for 120 days and should this prove futile, he be allowed replace the pistol with another unit of the same brand and quality. However, the request of the accused was denied23 on 26 March 2001 and he was only given until 31 March 2001 to return the subject properties otherwise charges will be filed against him.

17 Exhibit “C” for the prosecution. Testimony of Chief Inspector Gallego, TSN, 9/20/03, pp. 24-30.

18 Exhibit “D” for the prosecution. 19 Exhibit “4” for the defense.20 Exhibit “E” for the prosecution. 21 Testimony of Chief Inspector Gallego, TSN, 9/20/03, pp. 24-30.22 Exhibit “F” for the prosecution. 23 Exhibit “G” for the prosecution.


On 24 April 2001, accused having failed to return the subject properties on the date given him, the Chief of Police of the Mambajao Police Station filed a complaint against him for malversation of public property. 24

Finally, it was only on 3 January 2002 that the accused paid P 40,650.00 in restitution for the subject properties. This was a good two years after the complaint for malversation against him was filed. The prosecution then opined that although the accused had paid P40,650.00 he cannot be absolved from the crime of malversation of public funds or property because the subsequent restitution of the property alleged to be malversed does not extinguish the criminal liability of the accused, at best it can only be appreciated as a mitigating circumstance. The prosecution concluded that despite the belated payment of the accused for the subject properties, he is still liable for violation of Article 217 of the RPC.

Evidence for the AccusedThe accused had never denied that he had in his

possession a berretta pistol with serial number M-17849Z together with its magazine and ammunition. He explained that the subject properties were given to him on 12 April 1999 at his residence as birthday gift by Congressman Jesus Jurgene Romualdo (Congressman Romualdo) of the Lone District of the province of Camiguin such that he was surprised when a few days later, he was asked to sign a Memorandum Receipt25 for the subject properties by SPO4 Chan and SPO3 Bacor.26 24 Exhibit “H” for the prosecution.25 Exhibit “B” for the prosecution.26 TSN dated 8/3/05, pp. 6-7, 30-31.


Although the berretta pistol, magazines and ammunition were public property, the accused claimed that not being an organic member of the PNP, he was not accountable for them. The accountability lies with the Mambajao Police Station as it was indicated in the Memorandum Receipt that the subject properties were for the use of the Mambajao Police Station and not for the Office of the Mayor of the municipality of Mambajao, Camiguin.

The accused further claimed that from the time he received the subject properties, he had not been negligent in their safekeeping for he had never taken them out from a locked drawer in his table at the mayor’s office in the municipal building of Mambajao, Camiguin. And it was only when he received the letter dated 30 October 2000 from Chief Inspector Gallego requesting the return of the subject properties that he discovered that his office drawer had been forcibly opened and the subject properties missing therefrom. After discovery of the loss of the said items, the accused took painstaking effort to retrieve them and, failing which, he executed an affidavit of loss which he submitted to the Mambajao Police Station sometime in October 2000.27

Accused further testified that there was no response from the PNP until 3 March 2001 when SPO4 Chan sent a letter requesting the accused to turn-over the subject properties. Replying thereto, the accused stated in a letter dated 7 March 2001 that he had previously submitted an affidavit of loss and that despite diligent efforts the subject properties could no longer be located. At the same time, the 27 Exhibit “4” for the defense.


accused sought from the PNP an extension of time to locate the subject properties28 which the Chief of Police of Mambajao, Camiguin denied as he was given only until 31 March 2001 to return subject properties. Thereafter, the accused wrote a letter dated 27 March 2001 requesting the PNP officials concerned that in the event the said items cannot be found, the accused will just pay for their value.29

Meanwhile, on 26 June 2000, the Board of Survey of the PNP convened to determine accused’s liability for the loss of the subject properties. After evaluation of all the records of the investigation, the Board of Survey found the SPO4 Chan (as officer-in-charge of the Mambajao Police Station) and Supply Officer SPO3 Bacor administratively liable for issuing a Memorandum Receipt for the subject properties to accused -- who is a non-organic member of the PNP -- without written authorization from the PNP Provincial Director.

The Board found accused civilly liable for the loss of the subject properties. It recommended, however, that accused be dropped from the property accountability of the Mambajao Police Station and from the Book of Accounts of the PNP after he pays for the lost items. Thus, on 3 January 2002, in compliance with the findings and recommendation of the Board of Survey, the accused paid for the subject properties in the amount of P40, 650.00.30 As a consequence of the foregoing, the accused contended that the subsequent payment of the subject properties exonerated him from liability for malversation of public property.28 Exhibit “5” for the defense.29 Exhibit “6” for the defense.30 Exhibit “1” for the defense.


The Court’s rulingThe Revised Penal Code defines the crime of

malversation of public funds or property as follows:

Art. 217. Malversation of public funds or property. – Presumption of malversation. - Any public officer who, by the 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 misappropriation or malversation of such funds or property …

xxx xxx xxx

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.

To be convicted of the above-cited crime, it is essential that the following elements concur:

(1) The offender is a public officer;

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

(3) The funds or property involved are public funds or property for which he is accountable; and

(4) He has appropriated, taken or misappropriated, or has consented to, or thorough abandonment or negligence permitted, the taking by another person of, such funds or property.31

From the joint stipulation of facts appearing in the Pre-Trial Order, the following are the undisputed facts:

31 People v. Enfermo, G.R. Nos. 148682-85, 30 Nov. 2005 citing Rueda v. Sandiganbayan, G.R. No. 129064, 29 Nov. 2000, 346 SCRA 341; See also Sarigumba v. Sandiganbayan. G.R. Nos. 154239-41, 16 Feb. 2005, 451 SCRA 533.


1. Accused Isidro T. Reyes is a high-ranking public official being then the municipal mayor of Mambajao, Camiguin;

2. Accused had in his custody one (1) unit of a 9 mm pistol beretta with serial no. M17842Z, two pieces of magazine and 25 rounds of 9 mm ammunition;

3. Accused received a letter dated October 30, 2000 from Police Inspector Teodorico B. Gallego of the PNP Chief of Police, Mambajao Police Station, requesting/demanding the turnover of the aforecited firearm and ammunition;

4. Accused received a letter dated March 3, 2001 from Officer-In-Charge SPO4 Antonio Cabrera Chan, of the Camiguin Police Office, demanding/requesting the turnover of the aforecited firearm and ammunition;

5. Accused was not able to turn over the 9mm pistol beretta, two pieces magazine and 25 rounds of 9 mm ammunition;

6. The accused never denied his possession of the pistol with magazine at his office when he discovered the loss of the same;

7. The accused asked for time from the PNP authorities to locate the pistol, the magazine and the ammunitions involved in this case;

8. The PNP authorities or the Board of Survey concerned recommended that the accused be made to pay [for] the concerned pistol, magazine and ammunitions, after which the same should be dropped from the accountability of the Mambajao Police Station;

9. The accused paid for the pistol, the magazine and the ammunitions consistent with the recommendation of the Board of Survey only on January 3, 2002;

10. The accused was not an organic member of the PNP when the memorandum receipt was issued to him.”32

The first element of the crime is covered by the first stipulation. The second stipulation is an admission of the

32 Record, pp. 202-203.


public nature of the subject properties. Stipulations three, four and five establish accused’s failure to return subject properties upon demand by the proper officials of the PNP.

The primordial issue that must be resolved, therefore, is whether accused is accountable for the subject properties and, corollary thereto, whether his custody or control over the same was by reason of the duties of his office. If so, his failure to account for the subject properties upon proper demand for their return constitutes prima facie evidence of misappropriation which he has to rebut with countervailing evidence.

The prosecution argues that accused is an accountable public officer and that he received the subject properties by reason of the duties of his office as Municipal Mayor of Mambajao, Camiguin. It contends thus:

“Were it not for accused’s position as Municipal Mayor, he would not have been issued and entrusted with the subject government properties. Notably, he had the option to resist custody of the government properties, if he believed then that he did not have to be entrusted or given custody of the subject government properties, not being a policeman. He had the option to refuse their custody, control and safekeeping. He was after all, the municipal mayor and not just any other employee who was subject to another person’s will or desire. His claim that he thought the government properties were gifts to him is absurd as he in fact signed willingly and voluntarily an official government document or a Memorandum Receipt to prove that the said properties issued to him are in fact government properties, and the same were in his custody and that he had the duty to return them when duly demanded. His receipt of the custody and safekeeping of the government properties therefore had the accompanying duty and responsibility to account for the same, as is the regular and legal process in any public or bureaucratic organization.”33

33 Record, pp. 334-335.


Accused, on the other hand, insists that he is not accountable for the subject properties arguing thus:

“1. He was NOT an organic member of the PNP at the time he signed the memorandum receipt. (Admitted by the prosecution in paragraph 10 of the joint stipulation of facts and quoted in page 2 of the pre-trial order).

2. Not being an organic member of the PNP by no stretch of the imagination can he be an accountable officer and this is shown by the phraseology of Exhibit B of the prosecution which states: “… which will be used in the office of the Mambajao Police Station.” So the turning over of the possession of the pistol, magazine and the ammunitions is an irregularity since the same is for the use of the Mambajao Police Station but not in the Office of the Mayor or for the mayor. 3. Exhibit 2 (quoted in page 4 of the pre-trial order) and which the prosecution admits the existence, due execution and the truth of Exhibits “1”, “2”, “5” and “6” which admits the accountability of the pistol, magazine and ammunitions lies with the Mambajao Police Station NOT with the accused, to wit:

‘Exhibit “2” Official recommendation of the Board of Survey recommending that the accused be made to pay for the pistol, magazine and ammunitions, after which the same shall be dropped from the ACCOUNTABILITY of the Mambajao Police Station.’

So the prosecution admits, the ACCOUNTABILITY lies with the Mambajao Police Station NOT with the accused.”34

After a thorough review of the facts of the case, we hold that accused, as Municipal Mayor, is accountable for the subject properties he received from the Mambajao Police Station by virtue of the functions of his office.

An accountable officer under Art. 217 of the RPC is a public officer who, by reason of his office, is accountable for

34 Id. at 354-355 (Emphasis in original).


public funds or property.35 Section 101(1) of the Government Auditing Code of the Philippines (Presidential Decree No. 1445) defines accountable officer to be “(e)very officer of any government agency whose duties permit or require the possession or custody of government funds or property and who shall be accountable therefor and for the safekeeping thereof in conformity with law.”36

In the determination of who is an accountable officer, the Supreme Court has invariably held that “it is the nature of the duties which the public officer performs — the fact that, as part of his duties, he received public money for which he was bound to account, and not the nomenclature or the relative importance the position held — which is the controlling factor.”37

The duties and functions of municipal mayors are defined by law. Section 444(b) of Republic Act No. 7160 (otherwise known as the Local Government Code of 1991) provides, among other things, that Municipal Mayors shall:

“(2) Enforce all laws and ordinances relative to the governance of the municipality and the exercise of its corporate powers provided for under Section 22 of this Code, implement all approved policies, programs, projects, services and activities of the municipality and, in addition to the foregoing shall,:

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(iv) Be entitled to carry the necessary firearm within his territorial jurisdiction;

(v) Act as the deputized representative of the National Police Commission, formulate the

35 See also Querijero v. People, et al., G.R. No. 153483, 14 February 2003, 397 SCRA 465, 473-474.

36 Id. (Emphasis supplied)37 Id.(Emphasis supplied)


peace and order plan of the municipality and upon its approval, implement the same and exercise general and operational control over the local police forces in the municipality in accordance with R.A. No. 6975.”

On the other hand, Republic Act No. 6975, otherwise known as the Department of the Interior and Local Government Act of 1990, defines and delineates the participation of municipal mayors in the administration of the PNP. Section 51 thereof provides in part:

“SECTION 51. Powers of Local Government Officials Over the PNP Units or Forces. — Governors and mayors shall be deputized as representatives of the Commission in their respective territorial jurisdiction. As such, the local executives shall discharge the following functions:

Xxx

(b) City and Municipal Mayors — (1) Operational Supervision and Control. The city and municipal mayors shall exercise operational supervision and control over PNP units in their respective jurisdiction except during the thirty (30) day period immediately preceding and the thirty (30) days following any national, local and barangay elections. During the said period, the local police forces shall be under the supervision and control of the Commission on Elections.

The term "operational supervision and control" shall mean the power to direct, superintend, oversee and inspect the police units and forces.

It shall include the power to employ and deploy units or elements of the PNP, through the station commander, to ensure public safety and effective maintenance of peace and order within the locality. For this purpose, the term "employ" and "deploy" shall mean as follows:

"Employ" refers to utilization of units or elements of the PNP for purposes of protection of lives and properties, enforcement of laws, maintenance of peace and order, prevention of crimes, arrest of criminal offenders and bringing the offenders to justice, and ensuring public safety, particularly in the suppression of disorders, riots, lawless violence, rebellious seditious conspiracy, insurgency, subversion or other related activities.


"Deploy" shall mean the orderly organized physical movement of elements or units of the PNP within the province, city or municipality for purposes of employment as herein defined.

(2) Integrated Community Safety Plans. — The municipal/city mayor shall, in coordination with the local peace and order council of which he is the chairman pursuant to Executive Order No. 309, as amended, develop and establish an integrated area/community public safety plan embracing priorities of action and program thrusts for implementation by the local PNP stations.

It shall, likewise, be the duty of the city or municipal mayor to sponsor periodic seminars for members of the PNP assigned or detailed in his city or municipality in order to update them regarding local ordinances and legislations.

[3) Administrative Disciplinary Powers. — In the areas of discipline, city and municipal mayors shall have the powers to impose, after due notice and summary hearings, disciplinary penalties for minor offenses committed by members of the PNP assigned to their respective jurisdictions, as provided in Section 41 of this Act.

(4) Other Powers. — In addition to the aforementioned powers, city and municipal mayors shall have the following authority over the PNP units in their respective jurisdictions:

(i) Authority to choose the chief of police from a list of five (5) eligibles recommended by the provincial police director, preferably from the same province, city or municipality.

(ii) Authority to recommend the transfer, reassignment or detail of PNP members outside of their respective city or town residences; and

(iii) Authority to recommend, from a list of eligibles previously screened by the peace and order council, the appointment of new members of the PNP to be assigned to their respective cities or municipalities without which no such appointment shall be attested.”

From the express terms of Republic Act No. 7160 in

relation to Republic Act No. 6975, accused, as municipal mayor, is duty-bound to enforce all laws and ordinances relative to the governance of his municipality and, in carrying out such function, he is given operational


supervision and control over the local police and is entitled to carry the necessary firearm within his territorial jurisdiction.

Accused insists at the outset that the subject properties were given to him by Congressman Romualdo as birthday presents which he received in his house on his natal day and that he signed the memorandum receipt over said properties much later.

We find this assertion undeserving of belief considering that there is credible documentary and testimonial evidence of accused having received subject properties on his birthday (12 April 1999) not from Congressman Romualdo but from Mambajao Police officers SPO4 Chan and SPO3 Bacor.

Exhibit “B” is the Memorandum Receipt signed by accused which is dated 12 April 1999 and which indicates that accused received the subject properties from SPO3 Bacor. Exhibit “I” is the joint affidavit of SPO4 Chan and SPO3 Bacor wherein they stated, among other things, that on 12 April 1999 they issued a memorandum receipt over the subject properties and that said properties were duly received by accused himself. On the witness stand, SPO4 Chan testified that he and his “Supply PNCO”38 delivered the subject properties to accused on 12 April 1999 at the latter’s residence.39 It is presumed that official duty was regularly performed by said police officers in the absence of any

38 Referring to SPO3 Bacor.39 TSN, 2/27/04, pp. 12-13.


testimony or document that can reasonably corroborate accused’s version of the events.

More telling, accused’s own exhibit “2”, which is the

report of the proceedings of the Board of Survey of the Camiguin Police Provincial Office and which was also offered as part of the testimony of the accused, proves that he received subject properties directly from SPO4 Chan and SPO3 Bacor, thus:

“MEMBER: (PINSP BAWI) My next questions will be intended to SPO3 Bacor, did you obey the order of your OIC, SPO4 Chan?

WITNESS: Yes, Sir I prepare[d] the Memorandum Receipt for one (1) each Pistol 9MM Beretta SN: M17849Z with Two (2) Magazines and Twenty Five (25) rds of ammunition.

MEMBER: (PINSP BAWI) What happened next?

WITNESS: (SPO3 Bacor) On 12 April 1999, the firearm and accessories stated above were issue[d] to then Mayor Isidro T. Reyes and as proof of this ex Mayor Reyes signed the MEMO RECEIPT dated 12 April 1999.

RECORDER:I proposed that the MEMO RECEIPT signed by Ex-Mayor be tagged as exhibit “B”.

CHAIRMAN: The proposal is approved. Let the Memo Receipt be incorporated into the records of this proceeding and be marked ass Exhibit “B” are there any follow-up questions from the member of the board.

MEMBER: (PSINP ELISEO B. BORROMEO) My question will be addressed to Ex-Mayor Isidro T. Reyes. Sir, do you have any objection with regards to the statement of the witnesses (SPO4 Chan and SPO3 Bacor)?

MAYOR REYES All of their statements are true, I signed the Memo Receipt dated 12 April 1999 stating therein that I acknowledged to have received from SPO3 Paul Acebar Bacor, Supply PNCO of Mambajao PS a firearm, pistol 9MM, Beretta


SN: M17849Z with Two (2) Magazines and Twenty five (25) rds ammunition.”40

Assuming for the sake of argument that accused initially received the subject properties from Congressman Romualdo, the fact still remains that accused did not subsequently return the subject properties when he was later asked to sign a memorandum receipt therefore. By signing the memorandum receipt, accused not only admitted the public nature of the properties but he also acknowledged his accountability over the same. Verily, public property can only be used for a public purpose.41 It stands to reason that when accused was required to sign a memorandum receipt for his custody of the subject properties, he was signing not as a private individual but as Municipal Mayor pursuant to his duty to enforce all laws and ordinances relative to the governance of his municipality with the power of general and operational control over the local police forces and with the right to carry the necessary firearm within his territorial jurisdiction.

Accused cannot hide behind the excuse that he is not

an organic member of the PNP since what is essential is that accused had custody and control over the subject properties by reason of the duties of his office. Accordingly, as the Supreme Court has held in a catena of cases, what is controlling is the nature of the duties of the accused and not the name or relative importance of his office or

40 Record, p. 119.41 Presidential Decree No. 1445 otherwise known as the “Government

Auditing Code of the Philippines” states in Section 4 (2) thereof that: “Government Funds of property shall be spent or used solely for public purpose.”


employment.42 Thus, it is immaterial that the memorandum receipt indicates that the properties will be used “in the office of Mambajao Police Station.” In fact, a mere clerk may be held guilty of malversation if he or she is entrusted with public funds or property and subsequently misappropriates the same.43 In People v. Hipol,44 the Supreme Court held:

“What is essential is that appellant had custody or control of public funds by reason of the duties of his office. He is an employee of, or in some way connected with, the government and, in the course of his employment, he receives money or property belonging to the government for which he is bound to account.”

Finally, accused refers to exhibit “2” which is the report of the proceedings of the Board of Survey of the PNP Camiguin Police Provincial Office to prove that the accountability for subject properties lies not with him but with the Mambajao Police Station.

Contrary to the position taken by the accused, the recommendations by the Board of Survey to the effect that --

“1. xxx Ex Mayor Isidro T. Reyes should be ordered to pay for the lost of one (1) 9MM Pistol (Beretta) SN m17849Z, two (2) magazines f/9MM and twenty five (25) rds ammos f/9MM based on the replacement cost and be dropped from the property accountability of Mambajao Police Station and likewise be dropped from the Book of Accounts of RSAO, PNP PRO 10.

2. Both SOP4 Antonio Cabrera Chan and SPO3 Paul Acebar Bacor be investigated for Grave Abuse of Authority.

Xxx”45

42 People v. Hipol, G.R. No. 140549, 22 July 2003, 407 SCRA 179. See also Quiñon v. People, G.R. No. 136462, 19 September 2002 389 SCRA 412; Querijero v. People, supra note 35; Rueda, Jr. v. Sandiganbayan, G.R. No. 129064, 14 Nov. 2000, 346 SCRA 341; U.S. v. Velasquez, 32 Phil. 157 (1915).

43 Barriga v. Sandiganbayan, 26 April 2005.44 G.R. No. 140549, 22 July 2003, 407 SCRA 179.45 Record, p. 121.


are not binding on this Court for the simple reason that the determination of who is an accountable officer within the meaning of Article 217 of the RPC is a judicial function. Moreover, the decision of the Board of Survey finding accused civilly liable was based on its assessment that accused, not being an organic member of the PNP, is not accountable for the subject properties. As already discussed herein, however, it is the nature of the duties of accused and not the name or relative importance of his office or employment that is controlling.

Having disposed of the first three elements, the Court must now determine if the prosecution has proven beyond reasonable doubt the last element, i.e. that the accused has appropriated, taken or misappropriated, or has consented to, or thorough abandonment or negligence permitted, the taking by another person of subject properties.

It is well-settled that to justify conviction for

malversation of public funds or property, the prosecution need only prove that the accused received public funds or property and that he could not account for them or did not have them in his possession and could not give a reasonable excuse for the disappearance of the same.46 An accountable public officer may be convicted of malversation even if there is no direct evidence of misappropriation and the only evidence is that there is a shortage in his accounts which he has not been able to explain satisfactorily.47

46 People v. Enfermo, supra note 31; People v. Pepito, G.R. Nos. 112761-65, 3 February 1997, 267 SCRA 358,368, See also Felicilda v. Grospe, G.R. No. 102494, 3 July 1992, 211 SCRA 285.

47 People v. Enfermo, supra.; Navallo v. Sandiganbayan, G.R. No. 97214, 18 July 1994, 234 SCRA 175, 185; Villanueva v. Sandiganbayan, G.E. No. 95627, 16 August 1991, 200 SCRA 722, 734.


In herein case, accused admits that he failed to produce the subject public properties at the time of demand by Police Inspector Gallego. Since accused is an accountable officer within the purview of Article 217 of the RPC, his failure “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 presumption of misappropriation can be negated when accused is able to present sufficient evidence that can nullify any likelihood that he had put the subject properties to personal use.48

As proof that he did not put the subject properties to personal use, accused maintains that he kept these under lock and key in his office drawer. From time to time, he would inspect them but he never took them out. Finally, when he was asked to return the subject properties, he was greatly surprised to discover that his office drawer was forcibly opened with the subject properties missing therefrom. He then exerted diligent effort to locate the missing items without much success. He subsequently executed an affidavit of loss dated 23 October 2000, which was marked and offered as Exhibit “4”.

Notwithstanding the foregoing testimony, the presumption of misappropriation stands unrebutted. The evidence on record, however, fails to show that accused

48 Querijero v. People, supra note 35 at 473 citing Madarang v. Sandiganbayan, 355 SCRA 525 and Diaz v. Sandiganbayan, G.R. No. 125213, 26 January 1999, 302 SCRA 118.


misappropriated said public property for his personal aggrandizement. Rather, the evidence points to the conclusion that, at the very least, the loss of the subject properties was through the negligence of the accused.

The presumption of misappropriation stands even when the evidence points to negligence as the cause of the malversation as said crime can be committed either intentionally or by negligence.49 The Supreme Court, in Cabello v. Sandiganbayan,50 held that “(t)he dolo or the culpa present in the offense is only a modality in the perpetration of the felony.” Thus, “(e)ven if the mode charged differs from the mode proved, the same offense of malversation is involved and conviction thereof is proper.”51

The negligence of the accused in the safe-keeping of the subject firearms has been proven beyond reasonable doubt. His negligence, being flagrant and palpable, amounts to a breach of duty which is punishable under the law.52

To begin, accused was flippant in his safekeeping of the subject properties. While he may have kept the subject properties under lock and key in his office drawer, he would sometimes forget to lock this same office drawer due to various matters occupying his mind.53 And, while the front door of accused’s office was always locked at the end of every working day, the side door was “sometimes forgotten

49 Cf. Diego v. Sandiganbayan, G.R. No. 139282, 4 September 2000, 339 SCRA 596, 603.

50 G.R. No. 93985, 14 May 1991, 197 SCRA 94.51 Ibid.52 Cf. Diego v. Sandiganbayan, supra note 49.53 This is shown from the statements accused made in his affidavit of loss

dated 23 October 2000. While on the witness stand, accused affirmed the truth of all the statements he made in said affidavit of loss (see TSN 3/8/05, p. 13).


to be locked at the end of every working day.”54 This side door was utilized by accused’s personnel as entry point whenever he was out of the office.55 Naturally, that accused’s room was not always locked made it possible for anyone of his staff, or any stranger for that matter, to gain access to his room while he was out of it. These circumstances amply show that accused was too relaxed in protecting the subject properties. In Aquino-Castillo v. Sandiganbayan,56 the Supreme Court affirmed the conviction of the accused therein for malversation through negligence as she was too relaxed and casual in safeguarding the public funds entrusted to her custody.

From the foregoing, it is clear that accused failed to exercise the necessary precautions to secure the safekeeping of the subject properties under his care. Guns with complete accessories, per se, are already dangerous to keep. It goes without saying that they must be guarded with more care and vigilance than what is usually required of objects less dangerous. Add to this the fact that the subject properties do not belong to accused, thus, he should have been extra-ordinarily diligent in their safekeeping.

Accused’s actions after he allegedly discovered that the subject properties were missing also leave much to be desired. It also casts serious doubt as to the truth of his assertion that he was a victim of theft.

54 Id.55 Id.56 G.R. No. 9140, 8 February 1990 (cited in SANDIGNBAYAN REPORTER,

Vol. 2, pp. 445-447).


Accused claims that he exerted diligent effort in searching for the stolen properties. Other than this self-serving assertion, however, we do not see any evidence of accused lifting a finger to recover said properties other than having filed an affidavit of loss. Considering that he is a municipal mayor with vast resources at his disposal and considerable authority over the local police, at the very least he could have requested an investigation into the alleged theft or robbery with the end view of recovering the lost items.57 No such investigation took place which again points to accused’s lackadaisical attitude towards the subject property. Moreover, considering his excuse that the subject properties were stolen from his office drawer, it is perplexing that he did not even have this fact reflected in a police blotter. Finally, accused did not present anyone to confirm his story of theft. We thus agree with the observation of the prosecution that the claim of theft, especially since it is uncorroborated, is flimsy and self-serving and made merely to negate criminal accountability under the law.

In Cimafranca v. Sandiganbayan,58 the Supreme Court rejected as “difficult to believe” the accused’s version as to why he was not able to immediately return the revolver and engine involved in that case, thus:

“… the version of petitioner as to why he was not able to immediately return the property, as correctly observed by the respondent court, is difficult to believe. He failed to report the alleged loss of government property to

57 We note that in Exhibit “2” – the report of the proceedings of the Board of Survey -- accused mentioned that an investigation into the alleged theft was conducted by one SPO4 Manuel T. Palmere, Sr., the investigator of the Mambajao Police Station. SPO4 Palmere, Sr. apparently reduced his investigation in writing but accused did not have said report identified, marked or offered in court which leads to the presumption that evidence willfully suppressed would be adverse if produced. See Section 3(e), Rule 131 of the Rules of Court.

58 G.R. No. 94408, 14 February 1991, 194 SCRA 107.


the proper authorities. While he claimed to have reported the loss of the engine to the police, said matter was not reflected in the police blotter. He presented an affidavit of P/Cpl Crispin Tubayan confirming said report but petitioner did not present Tubayan as a witness as the affidavit in itself is hearsay. And although petitioner also testified that he reported the loss of the revolver to the Provincial Governor, this fact was not even reflected in the affidavit of loss he executed. Moreover, he did not ask nor did he present the Governor to testify in order to confirm his statement.” Equally untenable is accused’s argument that his

payment of the value of the subject properties puts him beyond the pale of the law as it is doctrinal that restitution of the public funds or property work only to mitigate the liability for malversation.59 The payment of the property malversed after the commission of the crime, does not extinguish the criminal liability of the responsible public officer.60

Having established accused’s liability for malversation of public funds, we now determine the penalty to be imposed upon him keeping in mind that in malversation, the penalty is dependent on the value of the public funds, money or property malversed.61

The Information pegged the value of the subject properties at P 42,375.00. To prove said valuation, the prosecution presented PNP Circular No. 0001-02 on the “Cost Valuation of PNP Issued and Loaned Firearms” which prosecution witnesses SPO4 Chan and Police Inspector Gallego identified in court and which was duly marked and offered as Exhibit “A”. Therein, the cost of a 9mm Beretta 59 Kimpo v. Sandiganbayan, et al., G.R. No. 95604, 29 April 1994, 232

SCRA 53, 62 citing El Pueblo de Filipinas v. Velasquez, 72 Phil. 98. 60 Peñanueva, Jr. v. Sandiganbayan, G.R. Nos. 98000-02, 30 June 1993,

224 SCRA 86 and the cases cited therein.61 Article 217, RPC; See also Diego v. Sandiganbayan, supra note 49 at 606-607.


pistol is P 44,000.00 which is higher than what is indicated in the Information. The discrepancy can be attributed to the fact that said PNP circular is dated 2002 while the subject properties were issued to accused much earlier, on 12 April 1999.

As a general rule, the cost valuation stated in the PNP Circular would have been acceptable as, in fact, the Supreme Court in Quiñon v. People62 used the cost valuation of the then Ministry of Defense in establishing the value of the firearms malversed in that case. However, in this case, as there is a discrepancy in the valuation of the subject properties as indicated in the Information and in the PNP Circular and considering the date of said PNP Circular, we cannot accept the valuation therein at face value. This is not to say that the prosecution failed to prove the value of subject properties. It must be recalled that on 3 January 2002, accused paid for the subject properties in full in the amount of P 40,650 as evidenced by Exhibit “1”. Being accused’s own exhibit, he is bound by it. Accordingly, pursuant to paragraph 4 of Article 217 of the RPC, if the amount malversed exceeds P 22,000.00 the penalty shall be reclusion temporal in its maximum period to reclusion perpetua.

WHEREFORE, judgment is hereby rendered finding accused Isidro T. Reyes GUILTY beyond reasonable doubt of the offense of Malversation of Public Funds, as defined and penalized under Article 217 of the Revised Penal Code, and favorably appreciating the mitigating circumstance of full

62 G.R. No. 136462, 19 September 2002 389 SCRA 412.


payment, after applying the Indeterminate Sentence Law, hereby sentences him to suffer an indeterminate penalty ranging from TEN (10) YEARS and ONE (1) DAY of prision mayor as the minimum, to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY of reclusion temporal, as the maximum; to further suffer perpetual special disqualification; to pay a fine of P 40,650 equal to the amount malversed and to pay the costs of this action. No civil liability is awarded in view of the full payment of the properties involved.

SO ORDERED.

ALEXANDER G. GESMUNDO

Associate Justice

WE CONCUR:

TERESITA J. LEONARDO-DE CASTRO

Presiding Justice, Chairman

DIOSDADO M. PERALTA Associate Justice

A T T E S T A T I O N

I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.


TERESITA J. LEONARDO-DE CASTROChairman, First Division

C E R T I F I C A T I O N

Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairman’s Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

TERESITA J. LEONARDO-DE CASTROPresiding Justice

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