Malversation is defined and penalized under Article 217 of the Revised Penal Code, to wit:
Art. 217. Malversation of public funds or property. Presumption of malversation.- Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or negligence, shall permit any other person to take such public funds or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property, shall suffer:
1. The penalty of prision correccional in its medium and maximum periods, if the amount involved in the misappropriation or malversation does not exceed two hundred pesos.
2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is more than two hundred pesos but does not exceed six thousand pesos.
3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period, if the amount involved is more than six thousand pesos but is less than twelve thousand pesos.
4. The penalty of reclusion temporal in its medium and maximum periods, if the amount involved is more than twelve thousand pesos but is less than twenty-two thousand pesos. If the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the property embezzled.
The failure of a public officer to have duly forthcoming any public fund or property with which he is chargeable, upon demand by any duly authorized officer, shall beprima facie evidence that he has put such missing funds or property to personal uses.
The elements of the crime of malversation of public funds are, thus:
1. that the offender is a public officer;
2. that he had the custody or control of funds or property by reason of the duties of his office;
3. that those funds or property were public funds or property for which he was accountable; and
4. that he appropriated, took, misappropriated or consented or, through abandonment or negligence, permitted another person to take them.[30]
In the present case, all the elements are present and have been proven by the prosecution.
With respect to the first three elements, it has been established that petitioner was a revenue collection agent of the BIR.[31] He was a public officer who had custody of public funds for which he was accountable.
Anent the fourth element, such was established when the PNB confirmed that there was a discrepancy in the amounts actually received by the PNB and the amounts stated in the receipts reported by petitioner.
Petitioner, however, disputes this finding.
Firstly, petitioner argues that the prosecution admitted the authenticity of the PNB documents he submitted for audit, when it offered such in its formal offer of evidence “to prove that petitioner collected the said amounts and deposited the same to the PNB Olongapo Branch.”
Petitioner is mistaken.
A cursory reading of the prosecution’s formal offer of evidence[32] reveals that the PNB documents were not offered to prove that petitioner “deposited” the stated amounts, but rather that petitioner “presented”[33] the PNB documents to the COA Auditor to show that he collected and deposited the amounts stated therein.
Secondly, petitioner argues that the PNB, thru De Guzman’s letter dated
The Court is not persuaded.
A review of the said letter will reveal that the above-quoted statement was taken out of context by petitioner. The phrase relied upon was not a confirmation by the PNB that the submitted documents were authentic, but was a mere reference to the letter of Soto requesting the PNB to confirm the authenticity of said documents. In fact, the letter precisely enumerates discrepancies and inauthentic documents in the papers which were submitted to the PNB for confirmation.
x x x.
This Court has held that to justify conviction for malversation of public funds or property, the prosecution has only to 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 their disappearance. 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 satisfactorily explain.[38]
In the present case, considering that the shortage was duly proven by the prosecution, petitioner’s retaliation against the BIR for not promoting him clearly does not constitute a satisfactory or reasonable explanation for his failure to account for the missing amount.
Petitioner argues that Francisco, who noted the PNB letter prepared by De Guzman outlining the discrepancies in the documents, was not competent to testify on such, as she was not the one who prepared it.
This argument cannot prosper.
The objection against the admission of any evidence must be made at the proper time, as soon as the grounds therefor become reasonably apparent, and if not so made, it will be understood to have been waived.[39] Furthermore, only matters raised in the initial proceedings may be taken up by a party thereto on appeal.[40] In the present case, petitioner failed to object to the admission of the said letter during trial, and only raised it for the first time on appeal. Even if the said letter was inadmissible, petitioner had already admitted his shortage in his letter[41] dated
Petitioner also contends that the BIR overcalculated his total accountability by ₱7,989.00, hence, his total accountability is only ₱332,961.37, and not ₱340,950.37.
This argument cannot succeed.
This is a question of fact not reviewable by this Court. The factual finding of the RTC of petitioner’s total accountability in the amount of ₱340,950.37 was affirmed by the CA, and is again being raised for the first time on appeal. Furthermore, petitioner has already previously admitted his shortage in the amount of ₱291,783.00, which he, in fact, acknowledged and paid.
Petitioner avers that Soto requested the BIR to withhold his salary and apply the same to the shortage without his consent.
This argument must again fail.
Firstly, this contention is belied by the BIR letter[42] dated
The Court notes with dismay that petitioner has adopted two conflicting theories in his defense. In fact, all of petitioner’s arguments before this Court are being raised for the first time on appeal. Under the proceedings in the RTC and the CA, petitioner admitted having incurred a cash shortage but claimed his criminal liability was extinguished by his payment of the same.[43] Before this Court, however, petitioner argues that he is not criminally liable because the PNB confirmed the authenticity of the pertinent documents, and adds that his payment of the shortage was involuntary and without his consent. Petitioner’s reliance on these diametrically opposed defenses renders his present arguments all the more unbelievable and unavailing. This cannot be countenanced, as to do so would make a mockery of established precepts in criminal jurisprudence.[44]
Considering that the factual findings of the RTC, as affirmed by the CA, were supported by the evidence on record, all the elements of the crime of malversation of public funds were thus duly proven beyond reasonable doubt.
