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REPUBUC OF THE PHELIFPINES
Quezon City
Seventh Division
PEOPLE OF THE PHH^IPPINES,Plaintiff,
Criminal Case No. SBlO-CRM-0256-versus-
For: Malversation of Public Funds
(Article 217, of the Revised PenalCode)
BERNARDITO ASEBUQUE ABAPO,Accused.
Present:
Gomez-Estoesta, /.ChairpersonTrespeses, /.Hidalgo, /.
Promulgated on:
X-
JUDGMENT
IHDALGO,/.
The People of the Philippines charged BERNARDITO ASEBUQUEABAPO (accused Abapo) for the crime of Malversation of Public Funds,defined and penalized under Article 217 of the Revised Penal Code in anINFORMATION^ dated December 16,2010, quoted hereunder.
''That on or about the period between January 2002 to December2004 or sometime prior or subsequent thereto, in the Municipality of
^ Record, Vol. 1, pp. 1 to 4
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JudgingPeople vs. AbapoSB10-CRM-Q256
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Milagros, Masbate, Philippines, and within the jurisdiction of thisHonorable Court, above-named accused BERNARDITO A. ABAPO, apublic ofQcer, being then the Municipal Mayor of Milagros, Masbate, andas such, had in his possession and custody public funds in the total amountof TWENTY SIX MILLION FIVE HUNDRED NINE THOUSAND
FIVE HUNDRED NINETY FOUR PESOS and FOUR CENTAVOS (9^
26,509,594.04), Philippine Currency, representing his cash advances forwhich he is accountable to liquidate, and committing the offense inrelation to oftice, with deliberate intent, with intent of gain, did then andthere willfully, unlawfully and feloniously misappropriate, appropriate,take embezzle and convert into his own personal use and benefit saidamount of P 26,509,594.04, and despite demands made upon him by theCommission on Audit of Masbate City to account for the said amount, hasfailed to do so, to the damage and prejudice of the government, in theamount afore-stated.
CONTRARY TO LAW."
After the Information was filed with the Fifth Division of this Court,accused Abapo filed a Motion for the Conduct Preliminaiy Investigationdated January 5, 2011^ to which the Prosecution filed its Comment/Opposition dated January 18, 2011.^ Accused Abapo filed his Reply datedFebruary 3,2011.'*
Meanwhile, on January 11,2011, accused Abapo filed a Bail Bond inthe amount of Forty Thousand Pesos (P 40,000.00) before the RegionalTrial Court of Masbate City, Branch 46, for his provisional liberty whichwas, however, cancelled by this Court in a Resolution dated February 21,2011^ after finding that the crime charged against accused Abapo is a non-bailable offense. Subsequently, this Court on February 24, 2011, issued aHold Departure Order^ against accused Abapo. On the following day,February 25,2011, an Order of Arrest^ was issued against him. ;
This Court in a Resolution dated March 9, 2011^, denied the Motionfor the Conduct of a Preliminary Investigation. However, in a Resolutiondated June 1, 2011,^ the Court reconsidered its earlier Resolution (datedMarch 9, 2011), and granted the motion to conduct preliminaryinvestigation "in the interest of justice" i.e. in order to give accused Abapothe opportunity to submit documents and receipts purposely for theevaluation of Ae Office of the Ombudsman. The latter was directed to
terminate the re-investigation within sixty (60) days.
^ Record, Vol. 1 pp. 162 to 168^ Record, Vol. 1, pp. 172 to 173^ Record, Vol. 1, pp. 174 to 175' Record, Vol. 1, p. 188
® Record, Vol. 1, p. 192' Record, Vol. 1, pp. 194 to 195
® Record, VoL 1, pp. 199 to 200' Record, Vol. 1, p. 250
/ ^
JudgmentPeople vs. AbapoSB10-CRM-02S6
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Aggrieved^ the prosecution filed its Motion for Reconsideration datedJune 21, 2011^® but the same was denied by this Court in a Resolutiondated August 5, 201 In the same Resolution, accused Abapo wasdirected to reinstate and refile his bail bond which he did on September 5,2011 when he posted bailbond in the amount of Forty Thousand Pesos (P40,000.00) before the Regional Trial Court of Masbate City, Branch 46.'^
On June 3, 2013, the Office of the Ombudsman issued an Order^^terminating the reinvestigation and ordered the upholding of the Informationfiled against accused Abapo for Violation for Article 217 of the RevisedPenal Code.
On August 8, 2013, accused Abapo assisted by his counsel EduardoC. Vallejo, was arraigned and pleaded "NOT GUILTY" to the crimecharged. Preliminary Conference subsequently ensued.
EVIDENCE PRESENTED
The Prosecution presented both TESTIMONIAL andDOCUMENTARY EVIDENCE. Same is true with the DEFENSE.
PROSECUTION'S EVIDENCE
Testimonial:
JOSEPH MARION PENA NAVARRETE, 37years old» single, graft investigator of the PublicAssistance and Corruption Prevention Office, Officeof the Ombudsman for Luzon.
To expedite the proceedings, the prosecution made the followingstipulations which the defense counsel admitted, thus dispensing with thepresentation of Ms. Navarrete to the witness stand, consisting of thefollowing:
1. The witness is assigned as Graft Investigation Officer I ofthe Oublic Assistance and Corruption Prevention Office(PACPO), Office of the Ombudsman;
Record, Vol. 1, pp. 263 to 264" Record, VoL l,p.273
Record, Vol. 1, pp. 284 to 293" Record, Vol. 1, pp. 359 to 364
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2. The due execution and existence of the Affidavit Complaintof Joseph M. Navarrete against Bemardito Adapo, marked asExhitbit "A letter of Francisco Velasco, marked as Exhibit"C", Affidavit of Evelyn Arevalo, Marked as Exhibit "D"and COA Report marekd as Exhibit "E and,
3. The witness conducted and prepared a Fact Finding Report,marked as Exhibit "B",
EMMA MARCAIDA DEL PRADO, Filipino, 54years old, single. State Auditor n. Commission onAudit, with office address at COA Ground Floor,Capitol Building, 5400 Masbate
She testified that she started her career with the Commission on Audit
(COA) in 1999. In the course of her testimony, she said that she wasassigned to Team 3 of the government units of the Local GovernmentSector, Sub-Cluster n, headed by one Evelyn Lucera Arevalo, whichconducted an audit for the Provinces of Masbate and Sorsogon'"^ particularlythe mimcipalities of Balot, Claveria, Milagros and San Pascual, all in theProvince of Masbate.^^ She became a member of Team 3 pursuant to anOffice Order No. 2003-35 dated July 29, 2003 issued by Director IVSabiano G. Cabanatuan.*^
Among her duties and responsibilities'^ are:
1. Assist the team leader in the verification and examination on
a post audit basis of financial transactions, accoimts, reportsand records of the local government unit;
2. Assist the team leader in the verification of the documents,gathering of data, preparation or reports regarding theunliquidated cash advances;
She said that in 2004, Team B found out pursuant to a Memorandum'^issued by former COA Chairperson Guillermo Carague'^ that BemarditoAbapo, then Mayor of the Municipality of Milagros, Masbate, hasunliquidated cash advances amoimting to Twenty Six Million Five HundredNine Thousand Five Hundred Ninety Four Pesos and Four Centavos ̂ 26,509, 594.04) as of December 31, 2004.^® To substantiate her claim, sheidentified cash advances in the amount exceeding Fifty Thousand Pesos(P50,000.00), [reckoned] thirty (30) days from due date of the liquidatioiL
TSN dated October 13,2015, p. 11TSN dated October 13,2015, p. 12Exhibit "G"
"^arpraatNote 15" Exhibit "H"
TSN dated February 2,2016, p. 10TSN dated Februaiy 2,2016, p. 9 [
/ X
JudgmentPeople vs. Abtqx)SBlO-CRM-0256
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That she sent a demand letter to the concerned official and identified three
(3) annexes attached to the Memorandum namely:
(a) Submission of Reports on Unliquidated Cash Advances to theCivil Service Commission, Presidential Anti-Grafl Commission,Office of the Omnudsman or Department of Justice^^ as Annex "A(b) template of Statement of Cash Advances and Liquidations as ofDecember 31,2000;(c) template of Demand Letter as Annex "B"; and,(d) template of Narrative Report as Annex "C "
According to her. Annex "A " was a template provided by the Officeof the Audit Team to fill out a blank form and columns of the details of the
cash advances granted to officers. As regards Annex B, it was issued afterthey have verified the unliquidated cash advances which must be served bythe audit team. As regards Ae importance of Annex "C", she explained that,if there is no action taken to liquidate, said document will then be issued.This Annex "C" shows the complete circumstances of the cash advancegranted and regulations which the accountable officer has violated. Sheenlightened the Court that after the filing of the narrative report, the same issubmitted to Regional Cluster Director, Aida Belgira and after the latterreviewed the report, the same is returned back to Team B for finalizationand, will then be endorsed to the Legal Adjudication Office. ̂
She continued to testify that after the receipt of the Memorandum,they gathered evidence relating to cash advances including disbursementvouchers, pay checks, subsidiary ledger, report of checks issued, report ofdisbursement and bank statements.^ According to her, these pieces ofevidence support the recorded unliquidated cash advances of theaccountable officer.^^
She also said that, she found out that the disbursement vouchers arenot valid because there was no specific purpose stated which is contrary toCOA Circular Number 97-002^, which in essence provides that electedofficials shall be granted cash advances only when there are travel ejq)ensesincurred. However, in this case, other than the fact that the cash advancesstate no reason or purpose, the same were given not for travellingexpenses.^^ She averred that, while accused Abapo received the DemandLetter, he did not reply to the same.^^
To ensure that accused Ab^o is duly notified of his liabilities, a
TSN dated February 2,2016, p. 12^ TSN dated February 2,2016, p. 13^ TSN dated February 2,2016, pp. 13 to 16
id
" TSN dated February 2,2016, p. 17^'idTSN dated February 2,2016, p. 18
^ TSN <bted February 2,2016, p. 19
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JudgmentPeople vs. Ab^SB1(M:RM-02S6
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conference was held attended by accused Abapo himself. MunicipalTreasurer Loma Nufiez, Municipal Accountant Christie Aguas, andMunicipal Budget Officer Jenny Durongon but no settlement was reachedprompting them to send the report to the COA Regional Cluster DirectorAida M. Belgira?^ She conffimed that Municipal Accountant ChristieAguas and Executive Assistant Wilson Sia received the Demand Letter asevidenced by their respective signatures, which were placed by the twoofficers in the presence of her team.^®
Eventually, the Narrative Report was submitted to the Office of theOmbudsman together with her Affidavit (Exhibit and an Affidavitexecuted by their Team Leader, Evelyn Arevalo (Exhibit
When confronted why those two affidavits were executed on differentdates, Le. May 4, 2005 for the Affidavit executed by Evelyn Arevalo andMay 10,2005 for the Affidavit she executed, she explained that after EvelynArevalo executed her affidavit, the Legal Office of the COA Regio^Office [also] advised her to execute her own affidavit^^
As to how her team found out accused Abapo^s liability in theamount of Twenty Six Million Five Hundred Nine Thousand Five HimdredNinety Four Pesos and Four Centavos ̂ 26,509,594.04), she explained that,the Narrative Report is the Statement of Cash Advances and Liquidationwhich in details shows (sic) the cash advances granted to accused Abapo.^^Upon deeper probing, she averred that in the present case, the cash advancesof accused Abapo are not for travelling expenses but for some other purposelike, miscellaneous expenses and odier various obli^tions which is inviolation of Section 4.17, COA Circular No. 97-002^^ and insisted thataccused Abapo made no liquidation [of the cash advances].^^
She reiterated that, pursuant to Memorandum Circular 24-014 issuedby former [Chairperson] Carague, they are directed to report unliquidatedcash advances in accordance with Solana Covenant, among the essentialfeature of which is to monitor, to (sic) report, to (sic) consolidate reports ofthe office.^^
With regard to the other Cash Advances Vouchers, she said that, theseare only summaries of the vouchers per year and explained that for the year2002, ihe total amount of cash advances is Five Million Three HundredFifty One Thousand Three Hundred Seventy Pesos (P 5,351,370.00), for
^ TSN dated Febniaiy 2,2016, p. 20^ TSN dated February 3,2016, pp. 13 to 14TSN dated February 2,2016, pp. 21 to 22TSN dated February 3,2016, p. 6TSN dated February 3,2016, p. 9
^ TSN dated Febnmry 3,2016, p. 10" TSN dated February 3,2016. P. 11
TSN dated February 3,2016, p. 12" TSN dated February 3,2016, p. 15
Judgm«itPeople vs. AbapoSB10-CRM-02S6
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the year 2003, the cash advances amount to Four Million Six ThousandPesos ̂ 4,060,000.00), for the year 2004, the cash advances amount to OneMillion Seven Hundred Ninety Seven Thousand Six Hundred Twenty TwoPesos and Four Centavos ̂ 1,797,622.04) under the general fund and TwoHundred Seventy Two Thousand Pesos (P 272,000.00) imder Trust Fund.^^
ON CROSS EXAMmATlON,
She testified that, on August 24, 2004, she conducted an audit onaccused Abapo using all original copies [of the documents], subject ofwhich was the cash advances of accused Abapo for the years 2002 to 2004.The audit was conducted at the Accounting Office of the Municipal Hall ofMilagros, Province of Masbate^^ which she conducted together with EvelynArevalo which lasted for six (6) months.^® She also recalled that [during dieperiod of audit], they travelled everyday to the Municipality of Milagros butthey prepared their [written] reports at their official station.^' As to herrecollection, she said that, other than accused Abapo, they also conductedseparate audit on Municipal Treasurer Loma Logroflo Nuflez^^ and they alsofound irregularities to wMch cases against her were also filed.^^
When asked why she did not sign the report, she said that, under theprovision of Memorandum 2004-014, it is the audit team leader who shouldsign the report and in order to show that she personally examined thedocuments, she said [that] she personally prepared some of the workingpapers.'^As regards her familiarity with accused Abapo, she candidlyadmitted that she personally know him because the latter is their municipalmayor and was introduced to her upon her assumption to office.^^
As for the receipt of the demand letter, she affirmed that they sent thedemand letter on February 2005"^ and it was personally received by one Mr.Wilson Sia, Executive Assistant 5 and at the same time designated asMunicipal Administrator. She admitted that accused Abapo did notpersonally receive the [demand letter] because all communications foraccused Abapo was received by Mr. Wilson Sia.^^
She continued to testify that the audit [they] did is a special audit.'^^That is a common knowledge that it is the Municipal Administrator whoreceives whatever communication addressed to the Municipal Mayorbecause during the time the demand letter was sent, the Municipal Mayor
TSN dated Febniaiy 3,2016, p. 16TSN dated Febniaiy 8,2017, p. 7^ YSN dated Febniaiy 8,2017, p. 8TSN dated Febniaiy 8,2017, p. 10TSN dated Febniaiy 8,2017, p. 13TSN dated Febniaiy 8,2017, p. 14
^ idTSN dated Febniaiy 8,2017, p. 12^ TSN dated Febniaiy 8,2017, p. 17TSN dated Febniaiy 8,2017, p. 18TSN dated Febniaiy 9,2017, p. 4
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was not present in his office/^
On RE-DIRECT EXAMINATION,
She testified that after the demand letter was received by theMunicipal Administrator, they waited for the reply of the accountableofficer who is the Municipal Mayor, but there was none.^®
AIDA M. BELGIRA9 Filipino, 59 years old, StateAuditor V and Supervising Auditor of the LocalGovernment Unit Sector of Audit Group A, Provinceof Albay, Legaspi City, Commission on Audit,Regional Office No. 5
In order to expedite her direct testimony, the foUowing stipulationswere made:
1. She was not the one who prepared the documents she identified^ ̂namely sub-letters "A" to "K" of No. iP
2. Her signature does not appear in any of the documents^^
By way of counter-stipulations, the Defense offered the following:
1. That the witness has no personal knowledge regarding thecontents and preparation of the documents^^;
2. That she has no personal knowledge that the accusedcommitted the crime charged.^^
On CROSS EXAMINATION,
She recalled that she reviewed the copy of the Narrative Report withits supporting documents submitted by Team Leader Evelyn Arevalo asevidenced by a copy of the Indorsement to the Regional Cluster Director ofthe Legal Sector of the Regional Office, COA Region Np
In the course of reviewing the Narrative Report, she read the sameand browsed one by one all the supporting documents. Also, she verified,recomputed if there are computations involved^^ and compared thesupporing documents with the Narrative Report, the Disbursement
TSN dated Febniaiy 9,2017, p. 5^ TSN dated Febniaiy 9,2017, p. 8TSN dated March 5,2018, p. 4TSN dated March 5,2018, p. 24TSN dated March 5,2018, p. 5
^ TSN dated March 5,2018, p. 6TSN dated March 5,2018, p. 8^ TSN dated March 5,2018, p. 17" TSN dated March 5,2018, p. 18
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Vouchers and checks. In the process, she recognized some erroneousspellings, and the [use of] some terminologies which are not appropriate inthe report.^^
She continued to testify that after she received the final copy of theNarrative Report, she reviewed it anew and compared it with the corrected[copy] of the report and then, she prepared an Indorsement to the RegionalCluster Director for Legal [for] evaluation and appropriate action.^^ Inessence, she admitted that she practically adopted the narrative findings ascontained in the draft report of Ms. Arevalo.^'Lastly, she insisted that she isfamiliar with the signature of Ms. Arevalo.^^
On iUE-DIRECT EXAMINATION,
She said that the function of the Regional Cluster of Legal is toevaluate the report submitted by the Regional Cluster Director. Afterreviewing it, the Regional Cluster Director will file the case.^^
After the above witnesses testified, the prosecution offered thefollowing documentary evidence:
DOCUMENTARY EVIDENCE
EXHIBITS
"A"
DESCRIPTION
Affidavit-complaint of Joseph MarionT. Navarrete
"C
"D-l"UE»
"E-l-a"
"Fto F-ISS"
Fact-finding Report dated November23,2009Letter of Francisco R Velasco,Regional Cluster Director, RegionalLegal and Adjudication Office, COARegional Office No. 5Affidavit of Evelyn R. ArevaloSignature of Evelyn R AievaloAffidavit of State Auditor Emma
del Prado
Signature of State Auditor Emmadel Prado
Narrative Report with supportingdocuments
Office Order No. 2003-35
TSN dated March 5,2018, p. 19TSN dated March 5,2018, p. 20TSN dated March 5,2018, p. 21" TSN dated March 5,2018, p. 23" TSN dated March 5,2018, p. 25" TSN dated March 5,2018, p. 27
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"G-l-a" Team Member - Emma M. del
Prado,SAlMemorandum No. 2004-014, datedFebruary 24,2004
In a Resolution dated May 9, 2018^, the Court resolved to ADMITExhibits "C" "D" "E-l-a", "F'\ "G","H" and series.
DEFENSE EVIDENCE
Testimonial:
In support of accused Abapo's defense, the following witnessestestified:
CHRISTIE B. AGUAS, FUipino, 57 years old,former Municipal Accountant of the Municipality ofMilagros, Masbate.
Her direct testunony was reduced in the form of a Judicial Affidavitdated February 12,2019.
She testified that she acted as Municipal Accountant for theMunicipality of Milagros, Masbate firom August 1998 until her retirementfor health reasons in August 2005.
Her duties as Municipal Accountant include the processing ofdisbursements vouchers, keeping of financial records, preparation ofsupporting documents, keeping of financial records, preparation ofsupporting documents for liquidation and preparation of financialstatements. In preparing the supporting documents for liquidation, she wastasked to ensure that the supporting documents are complete and that, everycash advance is liquidated. After verification, she affixed her signature onthe disbursement voucher.
She candidly testified that she came to know about this case only lastDecember 31, 2003, when she issued a certification in her capacity asMunicipal Acountant of Milagros, Masbate, which states among others thataccused Abapo has a balance in the amount of Twenty Four Million FourHimdred Forty One Thousand Nine Hundred Seventy One Pesos ̂ 24,441,971.00).
In explaining the disbursement and liquidation process, she said, theBudget Officer will see to it that the claim made by the mayor is covered byan annual budget. After determining that it is covered by the annual budget,
^ Record, Vol. 3, pp. 389 to 391^ Judicial Affidavit Folder, pp. 1 to 10
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it will be referred to the Municipal Treasurer to check if there is cashavailable and then the Accounting Office will complete all supportingdocuments. If she finds that the documents are complete^ she will sign thethe disbursement vouchers. After signing the disbursement vouchers, theywill be sent to the Office of the Mayor coursed through the Office of theMunicipal Administrator for approval and then, will be sent back to theMunicipal Treasurer for posting in the cash book. Lastly, the MunicipalTreasurer will forward the disbursement vouchers to her office for
submission to the auditors together with the coresponding financialstatements.
As to whether there were liquidations made in this case, she testifiedthat liquidations were made because she signed at least hundred (300)existing obligation slips, and disbursement vouchers covering the years 2002to 2004. This only means that, accused Ab£q)o's [cash] advances wereliquidated and the liquidation was supported by documents. She however,admitted that the liquidation was not completed since these slips andvouchers never reached the Office of the Municipal Accountant The slipsand vouchers remained with the Office of the Municipal Adminsitrator andwere never forwarded to the Treasurer's Office. That because of the death
of Mr. Sia, the Municipal Administrator in August 2006, the documentswere never posted in the books of account and were not submitted toauditors. After the death of Mr. Sia and while she was cleaning his office,she found out that the vouchers were inside a box.
When asked about her personal relationship with the MunicipalAdministrator, [Mr. Sia], she claimed that her &ther is Mr. Sia's '"ninong"when the latter got married.
On CROSS EXAMINATION,
She reiterated that she resigned as Municipal Accountant on August22, 2005 for health reasons, such that, when Mr. Sia died, she is no longerthe municipal accountant. She denied being aware of the Demand Letterissued by the Commission on Audit dated January 18, 2005 despite beingconnected with the Municipality of Milagros during that time.^
She recalled that during the term of accused Abapo as MunicipalMayor from [1998 to 2007], his municipal administrator was Mr. Sia. More,she affrrmed that, the municipal administrator is not the repository of thefinancial documents of the municipality.^^
Upon deeper probing, she admitted that as per the Certification sheissued {Exhibit "F-Il" for the prosecution and Exhibit "1" for the defense),there was an unliquidated cash advance as of December 31, 2003 in the
TSN dated March 14,2019, p. 8TSN dated March 14,2019, p. 9
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amount of Twenty Four Million, Four Hundred Forty One Thousand, NineHundred Seventy One Pesos 24,441,971.00)^^ That while she adinittedthat after she signed the obligation slips, documents and disbursementvouchers, she forwarded them to the Office of the Mayor, she could nolonger remember the date when she forwarded them but they have a recordbook to show that certain documents were forwarded to the Office of the
Mayor.^^
Lastly, she testified that she called the attention of the Office of theMayor about the cash advances and started the liquidation procedure andthat, accused Abapo was fully aware of the unliquidated cash advances.^®Consequently, she made a follow up about the liquidation but found out thatthe liquidation report was not forwarded to her office for posting^^ andadmitted that after she recovered the obligation slips and disbursementvouchers firom the office of Mr. Sia, she merely kept them.^^
On RE-DIRECT EXAMINATION,
She cannot explain why the questioned [obligation slips] anddisbursement vouchers were recovered fi*om the office of Mr. Sia. She
clarified however, that the liquidation started because she signed thedisbursements vouchers.^^
In answer to the CLARIFICATORY QUESTIONS OF THECOURT,
She admitted that, though she was the Municipal Accountant for seven(7) years, it was only in 2006 when she found out that the liquidation processwas not completed. She does not have categorical answer on whether ayearly inventory of all disbursement vouchers or obligation slips which shesigned or issued was conducted.^"^
She denied that she was the one who wrote the demand letter and
likewise denied its existence. She however, admitted that she did not inquirefirom any of the staff of Mr. Sia why the liquidation report remained in thelatter's office.^^
She explained further that the unliquidated cash advances of accusedAbapo were accumulated, and that, upon knowing this, she verbally told himto settle them. In fact, she admitted that she already called the attention of
TSN dated March 14,2019, pp. 9 to 10^ TSN dated March 14,2019, p. 11TSN dated March 14,2019, p. 12TSN dated March 14,2019, p. 13
''^idTSN dated March 14,2019, pp. 14 to 15TSN dated March 14,2019, p. 18TSN dated March 14,2019, pp. 19 to 20
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accused Abapo as early as 2002 at the closing of the books/^ Lastly, sheexplained that the purpose of her signature on the obligation slip is to ̂ owthat there are funds available.^
R£B£CCA CASTILLO MARQUEZ, FiUpino,56 years old. Municipal Treasurer of Milagros,Masbate
Her direct testimony was likewise reduced in the form of a JudicialAffidavit dated May 29,2019/^
In her Judicial Affidavit, she recalled that she served in theMunicipality of Milagros, Masbate in the following capacities:
1. As Municipal Accountant Officer-in-Charge of the Municipality ofMilagros ̂ ^bate from June 2005 to March 15,2006 and as such,she is responsible for processing disbursements, keeping offinancial records, preparation of siqjporting documents forliquidation and preparation of financial statements;
2. As Treasurer Officer-in-Charge March 16, 2006 to October 5,2006;
3. As Assistant Treasurer from October 6,2006 to January 31,2016;4. As Municipal Treasurer Officer-in-Charge from February 1,2016
up to December 16,2017; and,5. From December 16,2017 up to present, as Municipal Treasurer.
She explained that as the OIC Municipal Accountant, she certifiedand transmitted to the Provincial Auditor the liquidations and variousrefunds of various cash advances of accused Abapo as evidenced by acertification dated November 16,2005 and Decemb^ 3, 2005, prepared byher and two Transmittals dated December 3, 2005 and January 12, 2006.She also identifed receipts and deposit slips to prove that refunds were madeby then OIC Municipal Treasurer Rodolfo C. Ibanez.
On CROSS EXAMINATION,
She affirmed that she worked from 2002 to 2004 at the AccountingOffice of the Municipality of Milagros, Masbate. And from Jime 2005 toMarch 15, 2006, accused ^pointed her as OIC Municipal Accountant.When confronted with several official receipts, she admitted that she cameacross these reciepts at the Treasurer's office.
As the OIC Municipal Treasurer, she was aware of the demand letter
TSN dated March 14,2019, p. 22 to 25^ TSN dated March 14,2019, p. 31^ Judicial Affidavit Folder 2, pp. 1 to 9
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dated January 28, 2005 issued by COA to accused Abapo. That by reasonthereof, she told him to liquidate his cash advances.^^
Upon deeper probing, she admitted that she issued Certificationsdated November 16, 2005, December 3,2005 and January 12, 2006, basedon the disbursement vouchers and obligation slips. That although she didnot categorically answer where did she get these disbursement vouchers andobligations slips, she said that she transmitted them to the Office of theProvincial Auitor.®®
In answer to the CLARBFICATORY QUESTIONS of the COURT,
She claimed that she saw all vouchers and desposit slips and it wasaccused Abapo who submitted them to the COA^^ More, the cash advanceswere refunded by the mayor in cash in the amount of Four Million Pesos(P 4,000,000.00) by way of one time liquidation.®^
After the above witnesses testified, the defense offered the followingdocumentary evidence:
DOCUMENTARY EVIDENCE
Exhibit
"Z-A"
"3"
t«4»
"6"
"302''to«619'»
Description
Certification dated December
31, 2003
Jn^dal AfQdavit of ChristieB. AguasSignature of Christie B.Aguas on page 9 of theJudicial Affidavit
Affidavit of Rebecca C.
Marquez dated 27 June 2011Certification dated 03 December
2005
Certification dated 16
November 2005
Transmittal dated 03
December 2005
Transmittal dated 12 January2006
Receipts and Deposit Slipsshowing payments for partialliquidation/refundDisbursement Vouchers dated
2002 to 2004
^ TSN dated May 30,2019, p. 24TSN dated May 30,2019, pp. 34 to 35TSN dated May 30,2019, pp. 36 to 37
^ TSN dated May 30,2019, p. 29
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Thereafter, the Court resolved to ADMIT Exhibits "1", "2", "2-A",and "3", but EXCLUDED Exhibits "4", "5", "6", "7", "8 to 8-H", "302" to"609."*'
On October 29,2019, accused Abapo filed an Omnibus Motion datedHA
September 26» 2019 praying among others that the Resolution datedSeptember 6,2019 be reconsidered. On November 5, 2019, the Prosecutionfiled its Opposition to the same. However, the Omnibus Motion was deniedoutright by the Court as refiected in the Minutes of the Proceedings datedNovember 4,2019, for being filed out of time.^^
Since there was no rebuttal evidence presented by the Prosecution, thecase was submitted for judgment
Hence, this judgment.
FETOINGS AND RULING OF THIS COURT
The crime for which accused Abapo was charged, is defined andpenalized under Article 217 of the Revised Penal Code» which states that:
"Article 217. Malversation of public fimds orproperty; Presumption of malversation.- Any publicofficer who, by reason of the duties of his office, isaccoimtable for public funds or property, shallappropriate the same or shall take or misappropriate orshall consent through abandonment or negligence, shallpermit any other person to take such public funds, orproperty, wholly or partially, or shall otherwise be guiltyof ̂e misappropriation or malversation of such funds orproperty, shall suffer:
XXX xxxx xxxx
In all cases, persons guilty of malversation shallalso suffer the penalty of perpetual specialdisqualification and a fine equal to the amount of thefunds malversed or equal to the total value of theproperty embezzled.
The failure of a public officer to have dulyforthcoming any public funds or property with which he
^ Resolution dated September 2019» Record, Vol. 5, pp. 41 to 43.Record, Vol. 5, pp. 90 to 96Record, Vol. 5, p. 103
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JudgmentPeople vs. AbapoSB10-CRM-02S6
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is chargeable^ upon demand by any duly authorizedofficer, shall be prima facie evidence that he has putsuch missing funds or property to personal use."
In Amelia Carmela Constantino Zoleta vs. The Honorable
Sandiganba^an Division) and the People of the Philippines^^y theSupreme Court explained that the crime of malversation may be committedby appropriating public funds or property; by taking or misappropriating thesame; by consenting, or through abandonment or negligence, by permittingany other person to take such public funds or properly; or by being otherwiseguilty of the misappropriation or malversation of such funds or property.
In Felix H. Cabello vs. Sandiganbayan and the People of thePhilippines^^y the Supreme Court clarified that Article 217 of the RevisedPenal Code provides that any public officer who, by reason of the duties ofhis office, is accountable for public funds or property, shall appropriate thesame, or shall take or misappropriate or shall consent, or throughabandonment or negligence, shall permit any other person to take suchpublic funds or property, wholly or partially, shall be guilty of themisappropriation or malversation of such funds or property.
In the same case, the Supreme Court further declared that the failureof that public officer to have duly forthcoming said public funds orproperty, upon demand by any duly authorized officer, shall he primafacie evidence that he has put the same to personal use.^ (emphasis ours)
The Supreme Court clarified that malversation is committed eitherintentionally or by negligence. The dolo or the culpa present in the offense isonly a modality in the perpetration of the felony. Even if the mode chargeddiffers firom the mode proved, the same offense of malversation is involvedand conviction thereof is proper. Jurisprudence states that aU that isnecessary for conviction is sufficient proof that the accountable officerhad received public funds, that he did not have them in his possessionwhen demand therefor was made, and that he could not satisfactorilyexplain his failure to do so. Direct evidence of personalmisappropriation by the accused is hardly necessary as long as theaccused cannot explain satisfactorily the shortage in his accounts.^^(emphasis supplied)
In light of the foregoing pronouncements, the elements common to allacts of malversation under Article 217 of the Revised Penal Code^®, asamended, are hereimder enumerated:
^ GR- No. 185224, July 29,2015^ GRNo. 93885, May 14,199188Id
Cantos V. P^ple, GJL No. 184908, July 3,2013
""Id
s
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JudgmentPeople vs. AbapoSB10-CRM-02S6
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(a) that the offender be a public officer;(b) that he had custody or control of funds or property by reason of theduties of his office;(c) that those fimds or property were public funds or property forwhich he was accountable; and(d) that he appropriated, took, misappropriated or consented, orthrough abandonment or negligence, permitted another person to takethem.
The foregoing elements will be discussed to categorically resolve theissue: "WHETHER OR NOT ACCUSED ABAPO CAN BE HELD
GUILTY OF THE CRIME CHARGED."
The First element- that the offender
be a public officer.
A public officer is any person who, by direct provision of the law,popular election, or appointment by competent authority, shall take part inthe performance of public functions in the Government of the PhiUppineIslands, or shall perform in said Government or in any of its branches publicduties as an employee, agent, or subordinate official, of any rank or class.'^
It is undisputed that this element is present. Accused Abapo was theMunicipal Mayor of Milagros, Masbate during the time material to thiscase.^^ This is also one of the stipulated facts entered into by the partiesduring the Pre-Trial of the case. Thus, there is no need for a lengthydiscussion of this element.
The second element- that he had
custody or control of funds orproperty by reason of the duties of hisoffice.
As then then Municipal Mayor of Milagros, Masbate, it is withoutdoubt that at one point or another, he had custody or control of public fundsfor his disposition but subject to certain limitations.
Section 340 of Republic Act 7160 imposes upon a local govenrmentofficial who has in possession or custody of local government funds thebasic obligation to safekeep public funds.
Article 203, Revised Penal Code^ Pre- Trml Order dated January 29,2014, Record VoL 1, pp. 490 to 511; Amended Pre-Trial Order dated
October 21,2015, Record. Vol. 3, pp. 5 to 25
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JudgmentPeople vs. AbapoSB10-CRM-02S6
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"Section 340. Persons
Government Funds. - AnyAccountable for Local
officer of the local
government unit whose duty permits or requires thepossession or custody of local government funds shallbe accountable and responsible for the safekeepingthereof in conformity with the provisions of this Title.Other local officers who, though not accountable by thenature of their duties, may likewise be similarly heldaccountable and responsible for local government fundsthrough their participation in the use or applicationthereof."
From the start, it is always the theory of the prosecution that cashadvances in the amount of P 26,509,594,04 were given to accused Abapo inhis capacity as then Municipal Mayor of Milagros, Masbate. For purposes ofclarification. Statements of Cash Advances and Liquidations for the LocalGovemenmt Units of Milagros, Masbate, quoted below {Fig^res 1 to 4)marked as Exhibits F-4, F-5, F-6 and F-7, respectively, reflect the cashadvances given to accused Abapo. Notably, these cash advances were notrebutted by him.
Figure 1AbVAI4<!;fe8 And
LGU. Milagros, Moslrale(For the Period from January 1. 2002 to December 31. 2004)
Nome of AccountoMe Officer BERNARDITO A. ABAPO
Page 1
Posttion/OesisnoUon: Municipal Mayor
CASH ADVANCES " ■
Ca CheckDate 1 Voucher No. Number AmountBeg. Balance 0M0MO2 P «4j»aje0iJM)
January 200212/21/01 1/002 8184384 For misc. expenses 80.008.0012/21/01 1/003 6184383 For various obUgation 51.570.0012/28/01 1/004 8184388 For various otritgotiort 120,000.0012ras/01 1/OOS 6184378 For mtac. expenses 200.000.0011/22/01 1/0O8 8184373 For various obligation 100.000.0011/15rt)1 1/013 8170018 For misc. expenses 100.000.0012/0S/01 1/014 8164381 For various olrBgation 170,000.0012/28/01 1/017 8164205 For various (4>ligalion ISO.OOO.CX)
February 2002
March 2002
2/20a002 3/059 8164041 For various obligation 125.500.002/13/2002 3fOS2 8184232 For various obligabon 150.000.002/20/2002 3toe3 8184235 For various obligation 200.000.003/8^002 3rt)71 8184246 For various obUgation 55.000.00
AprU20O24/1/2002 AfOBB 6184281 For various obi^aUon 240.000.004/28/2002 4/121 8170054 For various obUgation 100,000.004/28/2002 4/122 8170055 For various oMigation 100,000.00
May 2002
June 2002
8/4/2002 8/162 6170O88 For various obUgation 100.000.006/18/2002 8/185 8170100 For various ob^atkm 100.000.00
July 20Q27/11/2002 6/183 12372429 For various oliUgation 300.000.007/240002 7/185 12372433 For various otat^Uon 100.000.00
August 20028/B/2O02 8/211 12372451 For various obligation 200,000.008/14/2002 8/215 12372458 FOr variouB obUgaUon 250,000.008/27/2002 8/223 12372467 For various obUgation 250.000.00BtZOfZOOZ 8/224 12372470 For various obUgation 223.400.00
SeptfMnber 2008
8/10/2002 0/23O 12372487 For various obUgation 223.200.008/23/2002 8tt33 12372491 For anb-cfime campaign 100.000.00eaS6i2!0O2 0f23B 12372498 For various otjUgotion 100.000.00
October 2002
10/8/2002 9/242 12372499 For various obligation 188.000.0010/8/2002 8/243 12372500 For various obligation 30.000.001O/10/20Q2 10/245 12372504 For various obligation 100.000.0010/10/2002 10/246 12372508 For various obligation 35,700.0010/18/2002 loaso 12372518 For misc. expenses 100,000.0010/10/2002 10/253-A 12372508 For various obUgation 100.000.00
Sub-total 1* 10,37019714X1
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JudgmentPeople vs. AbapoSB10-CRM-02S6
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Figure 2STATEMENT OF CASH ADVANCES AND LIQUIDATIONS
L6U. Milagros. Masbate(For the Peiiod frpw January 1.2(M)2 to Dec^ber 31.2004)
Name of AcomintaMe Office BERNARDITO A ABAPOPosition/De^nation: Municipal Maycwr
CASH ADVANCES
CA Check
Totar fonmanted
November 2002
11/28102 11063 12372567
11/11/02 11084 12372543
11/07/02 11078 12372534
Deoomber2002
11/11/02 12089 12372542
12/10/02 12/303 12372577
12/10/02 12/304 12372578
1203A)2 12O08 12372584
•fatmiary2003
1/60003 1/003 12372587
1/80003 1/004 12372588
1/280003 1/032 12372634
February1/31/2003 1/082 12372639
March
3/180003 3/197 12372681
3/130003 3056 12372673
April3/345
1/240003 4069 12372612
1/240003 4/370 12372613
May
June
6/120003 6/629 12372759
6/160003 6/831 12372761
6/23/2003 u/r 12372769
6/23/2003 u/r 12372770
July5/60003 7/778 12372729
7/14/2003 7/807 12372805
August809/2003 8042 12372908
September9/3/2003 9074 12372849
9020003 9089 12372869
9/180003 9084 12372864
October
1Q00003 10/1109 12372879
1Q/220003 10/1128 12372898
November
11/03/03 11/1294 12373212
11/03/03 11/1295 12373213
11/03/03 11/1298 12373214
11/18/03 11/1307 12373231
11/18/03 11/1303 12373233
RiTpose
For AntiOrime Campa^nFor variote obitgabonsForvaritNisobbgalions
For misc. expensesFor misa expenses
For varimis oUi^btmsFor various (^ifigations
For misc. expenses
For varimis obl^ationsFor misa expenses
For ntisc. expmises
For misc. expensesFor various obl^alions
For variot» oU^abonsFor various mun. propels
For equip! rental^un. projects
For various oM^alionsFor varknis ot^abons
Unsubntitted/Unreconted DV
UnsubnruttedAJmecorded DV
For misc. expensesFor various obfigatbns
For anb<rnne campaign
F(H'm)sc.e)q)mi8esFor expenses
For otherexpensesFor exposes
For misc. erqmisesForm^. eiqieraesFor4uniteo^hone
For cor^ of bunkhouse at
Barangays M^salangi &SawmQ)For misc. expwwes
P8ga2
Amount
10.870^1X01
183.000.00
150.000.00150.000.001
150.000.00150.000.00
112.000.001116.000.00
111.000.00!200.000.001112.000.00
111.000.00
100.000.00
100.000.001
90.00000
1.000.000.00 j500,000.00
150.000.00
150.000.00
50.000.00!50.000.00
100.000.00100.000.00
132.000.00
100.000.00
100.000.001100.000.00
100.000.00100.000.00
72.000.00100.000.00152.000.001
250.000.0030.000.001
Subtotal P 24^1,971.08!
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JudgmentPeople vs. AbapoSB10-CRM-02S6
Page 20 of 29
Figure 3a A.'
1STATEMENT OF CASH ADVANCES AND LIQUIDATIONS
1 LGU,Milagros, Masbate1 (For the Pwiod from January 1.2002 to December 31.2004)
Name of Accountal^ Offteer BERNARDITO A. ABAPO
Page 3
Position/Designation: Municipal Mayor
|CASHADVANr.FS5 1CA Check
AmountDate VoiK:herNo. Number Purpose
Beg. Balance P
Januaiy 2004
February 2004100,000.002/20/2004 2/074 12373330 CA- for anti crime exp.
March 2004
3/1/2004 3/180 12373332 CA^nfidential expenses 100.000.00
3/11/2004 u/r 12373350 Unrecorded Disb. Vcxichm^ 200.000.00
3/11/2004 u/r 12373351 Unrecorded Dtsb. Voucher 50.000.00
April 2004
May 200412/15/2003 5/515 123^51 CA - misc. expenses 27.000.00S/3/2004 5/498 1233021 CA - various obligations 500.000.00
June 2004
July 20047/1/2004 u/r 12373125 Unrecorded Disb. Voucher 130.000.007/1/2004 u/r 12373128 Unrecorded Voucher 160.000.007/27/2004 u/r 12373188 Unrecorded Disb. Voucher 300.623.047/27/2004 u/r 12373198 Unrecorded Disb. Voucher 100.000.007/22/2004 7/894 12373180 CA - various obr^ations 100.000.00
August 1-16 SMM
8/3/2004 u/r 1272923 Unrecorded Disb. Voucher 30.000.00
TOTAL CASH ADVANCES FOR GENBtAL FUND 12/31/04 |P 26.239.594.04
Trust fiind
May 20025/14/2002 05-002 6128238 CA- various obligatons P 50.000.00
Docember 2002
12/27/2002 12-007 6126243 CA- Mt^ilization fiind 150.000.00
January 20041/15/2004 u/r 6126264 Unrecorded cash advance 70.000.00
TOTAL CASH ADVANCES FOR TRUST FUND 1201/D4 270.000.00
TOTAL CASH ADVANCES AS OF 1201/04 [k 26.609.694.04
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JudgmentPeople vs. AbapoSB10-CRM-02S6
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4^VAV^iwiENT o«^ AdV/Anc«=& AKIU
■.OU. MUoQroo. IXInnlumi(For tt«e Por*ott fmm January 1. 2002 ta rww»in^Uiir At. 2004>
Nome of Aooour(tntito onicm. BERNAROrrO A. ABA(*0fugo o
PooiOon/Ooolonatlon: Munlolnal Mtamror
Data 1 Vouonor No. 1 1 1 AnMMmCTOTAt.C.WOHnOWesuro* AS OF tZOVO* -b4
LJOUlDA-TtOMS
Data Vouehor No. nM„rrT. ,o.nrtrr. Amount
200220032004
No Uquktotlon FNo UqutdotlonNo UfiuMatlon
_
Total UiquKloUotm
UMUOUIDATEO CA8M ADVANCES oo o* Doeemtior 31. 2004 p aejioojBOAJM
Further, a review of the record of this case also led to the finding thatthe pieces of evidence presented by the prosecution point to the existence ofthese cash advances. Interestingly and for reasons only known to him,accused Abapo did not adduce any evidence to refute this theory of theprosecution. Record shows that while he was given the opportumty topersonally dispute the findings of the COA, he never took the witness standto at least explain his side. To be more precise, no explanation was heardfrom him why he was given cash advances, for what reasons these cashadvances are and more importatly, how did he use them. Surprisingly, he didnot even show receipts covering the expenses incurred fixim the cashadvances made by him, if there be any. Instead, he complacently andcompletely relied on the testimonies of his witnesses, namely Christie Aguasand Rebecca Marquez, who obviously have no personal knowledge on whythese advances were extended to him, for what use and how these cashadvances were spent.
In this regard, accused Abapo should remember that as one whoreceived and was entrusted with government funds, his sense ofresponsibility could have guided him to know that he has personal and legalobligalion to account his use of these cash advances and liquidate them asrequired by pertinent rules and regulations.
The third element- that those fiindsor property were public funds orproperty for which he wasaccountable.
Public fimds [is defined] are those moneys belonging to the State or toany political subdivision of the State; more specifically, taxes, customsduties and moneys raised by operation of law for the siqiport of the
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government or for the discharge of its obligations.^^
The funds involved in the present case are undeniably public fundswhich are supposed to be accounted for. The following observations willsubstantiate these findmgs:
1. The Auditors of the COA were keen in demanding from accusedAbapo to account the total amount of cash advances in the totalamount of ¥ 26,509,594.04, made by accused Abapo, pursuant toits constitutional mandate as guardian of public funds in order togive life to the check and balance system inherent in our form of
OA
government.
2. Witnesses for both the prosecution and the defense testified that ademand was made requiring accused Abapo to liquidate the cashadvances he made. Why would the prosecution witnesses testifythat they demanded for liquidation pursuant to existing rules andregulations of the COA if the funds do not belong to the publictreasury? More importantly, why would the witnesses for thedefense testify that accused Abapo partially liquidated the cashadvances if the money extended to him does not form part of thepublic treasury? And,
3. Accused Abapo did not present any evidence to negate the theoryof the prosecution that funds involved in the present case are publicfunds despite having the opportunity to do so. Failure of accusedAbapo to do so can be treated as admission by silence underSection 32, Rule 130 of the Revised Rules on Evidence.^^
These observations without more, will lead to the conclusion thatindeed, the funds involved in the present case are public funds.
The fourth element- that he
appropriated, took, misappropriatedor consented, or throughabandonment or negligence,permitted another person to takethem.
In Bernardo U. Mesina vs. People of the Philippines^^ the SupremeCourt is very explicit when it ruled that, the failure of a public officer to
^ Confederation of Coconut Farmers Organizations of the Philippines vs. President Benigno Simeon C.Aquino, m, et al, GR No. 217%5, August 8,2017
^ Ramon R. Yap vs. Commission on Audit, OR. No. 158562, April 23,2010Section 32. Admission 1^ silence. — An act or declaration made in the presence and within the hearing
or observation of a party who does or says nothing when the act or declaration is such as naturally to callfor action or comment if not true, and when proper and possible for him to do so, may be given in evidencegainst him.'^GR No. 162489, June 17,2015
JudgmentPeople vs. Ab{q[x>SB10-CRM-02S6
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have duly forthcoming any public fiinds or property with which he ischai^eable, upon demand by any duly authorized officer, shall be primafacie evidence that he has put such missing funds or property topersonal use. (emphasis supplied) This presumption is, of course,rebuttable. Jurisprudence states that, if petitioner (sic) is able to presentadequate evidence that can nullify any likelihood that he put the fbnds orproperty to personal use, then that presumption would be at an end and theprimafacie case is effectively negated.^^
The Supreme Court also ruled that, an accountable officer may thus beconvicted of malversation even if there is no direct evidence of
misappropriation and the only evidence is that there is a shortage in theofficer's accounts which he has not been able to explain satisfactorily.^®
In this case, there is no doubt that accused Abapo failed to overcomethis prima facie evidence of guilt. He failed to explain why despite aconsiderable period of time, his cash advances remained to be unliquidatedmuch less, to restitute the amount upon demand.
To reiterate, accused Abapo failed to prove with good and validreasons his failure to justify how the amoimt of? 26,509,594.04 was spentand why it remains unliquidated. While his witnesses tried to persuade thisCourt that accused Abapo already complied with the liquidation as requiredby law, unfortunately, his two witnesses, namely Christie Aguas andRebecca Marquez, w^e not successful. A careful examination of theirrespective testimonies will show that their testimonies do more harm thangood to accused Abapo's cause.
To set the record straight, while witness Christie Aguas in her directtestimony said that accused Abapo's [cash] advances were liquidated and theliquidation was supported by documents, she however, admitted incategorical terms that the liquidation was not completed since the slipsand vouchers to be used for liquidation purposes never reached theOffice of the Municipal Accountant. Instead, they were found in theOffice of the Municipal Administrator who already died, and these slipsand vouchers were never forwarded to the Treasurer's Office. True or
not, fact remains that on record, neither liquidation nor accounting of thecash advances were made.
More, during her cross examination, the same witness candidlyadmitted that, accused Abapo was fully aware of the unliquidated cashadvances. In fact, she did make a follow up of these cash advances but thedocuments were not forwarded to her office for posting. She confessed thatshe called the attention of accused Abapo as early as 2002 at the closing of
^ Major Joel G. Cantos vs. People of the Philippines, OR No. 184908, July 3,2013^ Bacasnot vs. Sandiganbayan, et al., ISS SCRA 379
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JudgmentPeople vs. AbapoSBlO-CRM-0256
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the books^ as regards the unliquidated cash advances,^®® but apparently fromher words, nothing was done by accused.
On the other hand, witness Rebecca Marquez affirmed that as the QICMunicipal Treasurer, she was aware of the demand letter dated January 28,2005 issued by COA to accused Abapo that is why "'she told him to liquidatehis cash advances.
Gauging from said testimonies, what is clear is that accused Abapo isan accountable officer who received public funds but unfortunately was notable to properly account them up to this date. Or even if a liquidation wasmade, the same was not reflected in the Municipality's book of accoimts. Itbears stressing that, while he was given an opportunity to explain his sideand in fact, he was called to a conference about these cash advances whichhe personally attended together with Municipal Treasurer Loma Nunez,Municipal Accountant Christie Aguas, and Municipal Budget Officer JennyDurongon, he could not account for the cash advances and more, did nothave them in his possession when audited.
Regrettably, an over all assessment of the defense evidence shows thatit is weak and could not in all aspect overcome the evidence adduced by theprosecution. To be precise, accused Abapo could not exculpate himself fromliability based on a bare assertion that a partial liquidation was made but theliquidation report and its supporting documents never reached the Office ofthe Treasurer because of the untimely death of his Municipal Adminsitratorwho failed to transmit them.
Verily, he is considered as an accountable officer of the public fimdsextended to him, logic dictates that he should have kept track of theliquidation if there was any, since the money extended to him, as this Courthad already explained, are public funds and are property of the people andmust be used prudently at all times with a view to prevent dissipation andwastage.^®^
Another point, the defense of accused Abapo that he refunded in cashthe amount of Four Million Pesos (P 4,000,000.00) by way of one timeliquidation as testified by witness Rebecca C. Marquez cannot be givencredence by this Court because it is not supported by evidence. It should benoted that in our Resolution dated September 6, 2019^^^, this CourtEXCLUDED Exhibits ̂ 8" to (receipts and deposit slips) becausethese documentary exhibits were not submitted and filed together withdefense' Formal Offer of Exhibits, nor was there any other document of suchnature which was marked in the course of the trial. Simply put, accused
TSN dated March 14,2019, p. 12TSN dated March 14,2019, p. 22 to 25TSN dated M^ 30,2019, p. 24supra at Note 92Record, Vol. 5, pp. 41 to 43
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JudgmentPeople vs. Ab^x)SB10-CRM-Q2S6
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Abapo's self-serving defense has no value at all.
The imposable penalty providedunder Article 217 of the Revised
Penal Code, as amended by RepublicAct No. 10951
Article 217 of the Revised Penal Code reads:
"Art. 217. Malversation of public funds orproperty.— Presumption of malversation.-Any publicofficer who, by reason of the duties of his office, isaccountable for public hinds or property, shallappropriate the same, or shall take or misappropriateshall consent, or through abandonment or negligence,shall permit any other person to take such public fimdsor property, wholly or partially, or shall otherwise beguilty of the misappropriation or malversation of suchfunds or property, shall suffer.
Xxx XXX XXX
4. The penalty of reclusion temporal in itsmedium and maximum periods, if the amount involvedis more than twelve thousand pesos but is less thantwenty-two thousand pesos. If the amount exceeds thelatter, the penalty shall be reclusion temporal in itsmaximum period to reclusion perpetua.
In all cases, persons guilty of malversation shallalso suffer the penalty of perpetual specialdisqualification and a fine equal to the amount of thefunds malversed or equal to the total value of theproperty embezzled."
The above-quoted provision of law was amended by Republic ActNo. 10951 specifically. Section 40 thereof states that:
"Section 40. Article 217 of the same Act, asamended by Republic Act No. 1060, is hereby furtheramended to read as follows:
Art. 217. Malversation of public fimds orproperty.— Presumption of malversation. - Any public
An Act Adjusting the Amount or the Value of Property and Damage on Which a Penalty is Based anddie Fines Imposed Under die Revised Penal Code, Amending for the Purpose Act No. 3815, odierwiseKnown as The Revised Penal Code as Amended
/?
1
JudgmentPeople vs. Absqx)SB1(M:RM-0256
Page 26 of 29
officer who, by reason of the duties of his office, isaccountable for public fiinds or property, shallappropriate the same, or shall take or misappropriate orshall consent, through abandonment or ne^gence,shall permit any other person to take such public fundsor property, wholly or partially, or shall otherwise beguilty of the misappropriation or malversation of suchhinds or property, shall suffer,
Xxx XXX XXX
5. The penalty of reclusion temporal in its maximumperiod, if the amoimt involved is more than Fourmillion four himdred thousand pesos 0^4,400,000) butdoes not exceed Eight million eight hundred thousandpesos 0^8,800,000). If the amount exceeds the latter,the penalty shall be reclusion perpetua.
In all cases, persons guilty of malversation shall alsosuffer t he penalty of perpetual special disqualihcationand a fine equal to the amount of the funds malversedor equal to the total value of the property embezzled.
The failure of a public officer to have dulyforthcoming any public funds or property with whichhe is chargeable, upon demand by any duly authorizedofficer, shall be prima facie evidence that he has putsuch missing funds or property to personal uses."(emphasis supplied)
It is without doubt at the time accused Abapo committed the crimecharged "on or about the period between January 2002 to December 2004 orsometime prior or subsequent thereto", the governing law was Article 217of the Revised Penal Code. During the pendency of this case, however.Article 217 was amended by RA No. 10951. This law specifically providesfor a higher amount from which the imposable penalty should be based. RANo. 10951 states "the penalty of reclusion temporal in its maximum period,if the amount involved is more than Four Million Four Hundred ThousandPesos (P4,400,000) but does not exceed Eight Million Eight HundredThousand Pesos ̂ ,800,000). If the amount exceeds the latter^ the penaltyshall be reclusion perpetua." (emphasis supplied)
Applying the said provision, the imposable penalty for the crimecommitted is reclusion perpetua under RA 10951 considering that thesubject unliquidated cash advances amounted to P26,509,594.04. But sincethis Court will apply Article 271 of the Revised Penal Code, as amended, thelaw applicable during the commission of the crime, the imposable penalty is
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JudgmentPeople vs. Abqx)SBlO-CRM-0256
Page 27 of 29
reclusion temporal in its maximum period to reclusion perpetua, which ismore advantageous to accused Abapo. More, the Court finds it prudent toapply the Inderterminate Sentence Law.
Verily, in determining the proper penalty to be imposed, the Court isguided by the following rules, namely: (1) the penalties provided underArticle 217 of the Revised Penal Code constitute degrees; and (2)considering that the penalties provided under Article 217 of the RevisedPenal Code are not composed of three periods, the time included in thepenalty prescribed should be divided into three equal portions, which eachportion forming one period, pursuant to Article 65 of the Revised PenalCode.^®^
Moreover, under Section 1 of the Indeterminate Sentence Law, anindeterminate sentence is imposed on the offender consisting of a maximumterm and a minimum term. The maximum term is the penalty under theRevised Penal Code properly imposed after considering any attendingcircumstance; while the minimum term is within the range of the penaltynext lower than that prescribed by the Revised Penal Code for the offensecommitted. In this case, the Court will apply the Indeterminate SentenceLaw.
Applying the foregoing, the prescribed penalty to be imposed uponaccused Abapo is reclusion temporal in its maximum period to reclusionperpetua. Since there is neither aggravating nor mitigating circumstance, themedium period of said penalty can be imposed which is imprisonment ofsixteen (16) years, one (1) day to twenty (20) years as maximum. As regardsthe minimum penalty, the Court can impose the next lower penalty which isprison mayor in its maximum period to reclusion temporal in its mediumperiod which is twelve (12) years, five (5) months and eleven (11) days tofourteen (14) years, ten (10) months and twenty (20) days.
WHEREFORE, in view of our disqiuisitons above, accusedBERNARDrrO ASIBUQUE ABAPO is found GUILTY BEYONDREASONABLE DOUBT of the crime of Malversation of Public Funds,defined and penalized under Article 217 of the Revised Penal Code, asamended.
Applying the provisions of Article 217 of the Revised Penal Code, asamended and the Indeterminate Sentence Law, accused Abapo is ordered tosuffer the indeterminate penalty of imprisonment of twelve (12) years, five(5) months and eleven (11) dcQfs to fourteen (14) years, ten (10) months andtwenty (20) days as minimum to imprisonment of sixteen (16) years and one(1) day to twenty (20) years as maximum.
105 Manolho Gil Z. Zafra vs. People of Ae Philippine OR No. 176317, July 23,2014
7■. I
JudgmentPeople vs. Abiyx)SB10-CRM-«2S6
Page 28 of 29
Additionally and as provided by Article 217 of the Revised PenalCode, as amende^ he is likewise ordered to suffer the penalty of perpetualspecial disqualification to hold public office and to pay the fine ofTWENTY SIX MILLION FIVE HUNDRED NINE THOUSAND FIVE
HUNDRED NINETY FOUR PESOS and FOUR CENTAVOS
^26,509,594.04), Philippine Currency.
SO ORDERED.
GEORGINAI
Associah;
.HIDALGO
Justice
WE CONCUR:
MA. THERESA C. GOME^ESTGESTA
Associat^usdce, Chairperson
ISPESES
Associfie Justice
JudgmentPeople vs. AbapoSB10-CRM-02S6
Page 29 of 29
ATTESTATION
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 theCourt's Division.
MA. THERESA DO|9)RES C. GOMEZ-ESTOESTAChairperson, Seventh Division
CERTIFICATION
Pursuant to Article VBI, Section 13 of the Constitution, and theDivision Chairperson's Attestation, it is hereby certified that the conclusionsin the above Resolution were reached in consultation before the case was
assigned to the writer of the opinion of the Court's Division.
TANG^ARO
Presiding
f
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