Too late

In the crime of malversation, all that is necessary for conviction is sufficient proof that the accountable officer has received public funds, that he does not have them in his possession when demand for such funds is made and that he cannot satisfactorily explain his failure to do so. This is illustrated in this case of Danny.

Danny was the supply officer of the Provincial Engineer’s Office of his province. His functions include taking care of office properties and purchasing the necessary materials and supplies needed by the office. As such he was also referred to as the procurement officer. On January 14, 1988, he received a cash advance of P18,000 for the procurement of working tools for a certain project as shown by a disbursement voucher which he duly signed.

On May 5, 1988, Danny received a demand letter from the Provincial Treasurer giving him until May 16, 1998 to submit a liquidation of the P18,000 cash advance. When he failed to do so, he received another letter on May 26, 1998 giving him this time up to May 31, 1999 to settle his account. But as in the first instance, the second demand went unheeded. In fact Danny has not been reporting for work since May 1, 1988 such that by November 23, 1998, the new Governor already issued a memorandum terminating his services for abandonment of work and at the same time informing him that should he apply for the commutation of payment of unused vacation and sick leave credits, the same be applied to the unliquidated cash advance.

By August 16, 1990, Danny had not yet settled the said cash advance, thereby prompting the Provincial Treasurer to inform the Provincial Prosecutor of the COA findings regarding Danny’s cash advance of P18,000.

In was only in January 27, 1995 or almost seven years from last demand that Danny was able to liquidate the cash advance. He declared that he actually made a down payment of P11,000 for the tools but lost the receipt. He added that he did not return the balance of P7,000 anymore in view of the Governor’s Memorandum allowing him to offset the P18,000 from the terminal benefits due him. Notwithstanding the said explanation, the Sandiganbayan still found Danny guilty of malversation of public funds and sentenced him to imprisonment of 10 years and 1 day, minimum, to 14 years, 8 months and 1 day as maximum and pay a fine of P18,000. Was the Sandiganbayan correct?

Yes. Direct evidence of personal misappropriation by the accused is hardly necessary as long as he cannot explain satisfactorily the shortage in his account. The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, is prima facie evidence that he has put such missing fund or property to personal use. This prima facie presumption is effectively negated only if the accused is able to present adequate evidence that can nullify any likelihood that he had put the fund or property to his personal use.

In this case, Danny failed to overcome this prima facie evidence of guilt. His attempt at rationalizing his failure to liquidate is unacceptable. The Governor’s memorandum merely informed Danny that his application for commutation may be granted provided that the commutated amount is first applied to his unliquidated cash advance of P18,000. Nowhere in the said memorandum did it state that he is exempted from submitting his liquidation of said cash advance. As it is Danny failed to liquidate and return his cash advance despite repeated demands. He was able to return the said amount only on January 27, 1995, that is, after almost seven years from last demand. His claim of making a down payment of P11,000 for the alleged purchase of some tools pursuant to the requisition of the local government is not supported by evidence and there is nothing to show that he turned over the possession of the said tools to the government. Moreover, he admitted retaining or keeping the balance of P7,000. The only logical conclusion then is that he misappropriated and personally benefited from the cash advance of P18,000.

In malversation of public funds, payment, indemnification or reimbursement of funds misappropriated, after the commission of the crime, does not extinguish the criminal liability of the offender. At most, it can merely extinguish accused’s civil liability thereunder and be considered as a mitigating circumstance being analogous to voluntary surrender. Here the return of the amount cannot even be considered a mitigating circumstance considering that it took Danny almost seven years to return the amount (Davalos, Sr. vs. People G.R. 145229, April 24, 2006).

I hope that the Sandiganbayan can be as resolute and as decisive in cases where the accused has stolen hundreds of millions or even billions of pesos like the famous case of plunder now still pending before it.

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