MISAPROPRIATION

Lacking any evidence, however, of shortage, or taking, appropriation, or

conversion by petitioner or loss of public funds, there is no malversation.
(Narciso vs. Sandiganbayan, 229 SCRA 229 (1994)
The Court has repeatedly said that when the absence of funds is not due to
the personal use thereof by the accused, the presumption is completely
destroyed; in fact, the presumption is deemed never to have existed at all.
(Diaz vs. Sandiganbayan, 302 SCRA 118 (1999)
Mere absence of the funds is not sufficient proof of conversion. Neither is
the mere failure of petitioner to turn over the funds at any given time
sufficient to make even a prima facie case. Conversion must be affirmatively
proved, either by direct evidence or by the production of facts from which
conversion necessarily follows. (U.S. vs. Catolico, 18 Phil. 504 (1911);
Vicente R. Madarang vs. Sandiganbayan, et.al., G.R. No. 112314, March
28, 2001, 355 SCRA 525)
Withal, the Sandiganbayan should have satisfied itself that petitioner is
guilty beyond reasonable doubt of the offense charged. A finding of guilt
must rest on the strength of the prosecutions own evidence, and not on the
weakness, deficiency or absence of evidence for the defense. (People vs.
Batidor, 303 SCRA 335 (1999); People vs. Moreno, 321 SCRA 334
(1999); People vs. Vidal, 303 SCRA 1 (1999)
Demand is not an element of, and is not indispensable to constitute,
malversation since demand merely raises a prima facie presumption that
missing funds have been put to personal use. (Nizurtado vs.
Sandiganbayan, 239 SCRA 33 (1994)
When the absence of funds is not due to the personal use thereof by the
accused, the presumption of conversion is completely destroyedin fact,
the presumption is deemed never to have existed at all; A public officers
display of benevolence, commitment to and compassion for the poor may
run counter to certain provisions of law and to some auditing rules and
regulations, resulting in possible administrative sanctions, yet these certainly
do not amount to the embezzlement of the funds of his office to merit
prosecution and conviction. (Vicente R. Madarang vs. Sandiganbayan,
et.al., G.R. No. 112314, March 28, 2001, 355 SCRA 525)
An accountable officer under Article 217 of the Revised Penal Code must
receive money or property of the government which he is bound to account
for. It is the nature of the duties of, not the nomenclature used for, or the
relative significance of the title to, the position, which controls in that
determination. Based on this definition, to be held accountable the public
officer must receive the money or property, and later fails to account for it.

As heretofore stated, in Salamera vs. Sandiganbayan, we ruled that one

essential element of malversation is that a public officer must take public
funds, money or property, and misappropriate it to his own private use or
benefit. There must be asportation of public funds or property, akin to the
taking of anothers property in theft. In malversation, it is necessary to prove
that the accused received public funds, and that he could not account for
them and did not have them in his possession and that he could not account
for them and did not have them in his possession and that he could not give a
reasonable excuse for the disappearance of the same. (Rueda vs.
Sandiganbayan, et.al., G.R. No. 129064, November 29, 2000)
In Dumagat v. Sandiganbayan, 211 SCRA 17 (1992), the Supreme Court has
held that the audit examination cannot be made the basis for holding the
petitioner therein liable for malversation because it failed to establish that
funds were indeed missing since funds kept in other vaults were not included
in the examination. (Flordeliza F. Querijero vs. The People of the
Philippines and the Sandiganbayan, G.R. No. 153483, February 14,
2003; Mendoza, J.)
As stated in Tinga v. People (160 SCRA 483, 491 (1988): at this juncture, it
may not be amiss to state that considering the gravity of the offense of
Malversation of Public Funds, just as government treasurers are held to strict
accountability as regards funds entrusted to them in a fiduciary capacity, so
also should examining COA auditors act with greater care and caution in the
audit of the accounts of such accountable officers to avoid the perpetration
of any injustice. Accounts should be examined carefully and thoroughly to
the last detail, with absolute certainty in strict compliance with the
Manual of Instructions. (Flordeliza F. Querijero vs. The People of the
Philippines and the Sandiganbayan, G.R. No. 153483, February 14,
2003; Mendoza, J.)
In this case, the shortage of funds which was attributed to petitioner was not
indubitably established considering that the audit conducted was incomplete,
irregular, and inaccurate and did not follow standard auditing procedures by
excluding from the examination the other accountable officers in the office
and failing to open the other safe used in the office. Hence, the presumption
under Art. 217 of the Revised Penal Code, which was made the basis of
petitioners conviction by the Sandiganbayan, is not applicable. (Flordeliza
F. Querijero vs. The People of the Philippines and the Sandiganbayan,
G.R. No. 153483, February 14, 2003; Mendoza, J.)