Professional Documents
Culture Documents
Ynares-Santiago,
Carpio,
and
Azcuna,
JJ.
Present:
On the ground of reasonable doubt, accused 1. convicting him based on the allegations in the
JOSE TING LAN UY, Jr. is hereby information;
ACQUITTED of Malversation of Public Funds
thru Falsification of Commercial Document. 2. admitting and considering his alleged sworn
However, because of preponderance of evidence, statements;
he is CIVILLY LIABLE for the damages
suffered by the NPC in the amount of ONE 3. considering the alleged transcripts of
HUNDRED EIGHTY THREE MILLION stenographic notes and the NBI
EIGHT HUNDRED FIVE THOUSAND TWO Report.[6]
HUNDRED NINETY ONE PESOS AND
TWENTY FIVE CENTAVOS
(P183,805,291.25) solidarily with accused Jaime
The factual antecedents of the case, as summed by the
Ochoa. The Hold Departure Order against the
accused embodied in this Courts Resolution Sandiganbayan, are not disputed by the parties:
dated April 18, 2002 is recalled.
In July of 1990, the National Power Corporation Tokyo Branch. Likewise, per routing procedure,
(NPC) became embroiled in a controversy UCPB T.M. Kalaw Branch was supposed to have
involving the disappearance of P183,805,291.25 remitted on said value date the amount of
of its funds which were originally on deposit with US$7,740,799.80. UCPB T.M. Kalaw, however,
the Philippine National Bank, NPC Branch despite the fact that the PNB had already issued
(PNB) but were subsequently used to purchase two (2) managers/cashiers checks (Managers
two (2) managers/cashiers checks (the first check check for brevity) for such purpose, did not make
was in the amount of P70,000,000.00 while the the agreed remittance to Credit Lyonnais, so
second was for P113,805,291.25) in order to Credit Lyonnais received no payment for the
comply with its loan obligations to the Asian funds it had remitted to the Bank of Japan,
Development Bank (ADB). As NPCs debt in Tokyo. Both the State and the accused have
favor of ADB was in yen, NPC was obligated to offered explanations for the failure of UCPB,
follow an intricate and circuitous procedure of T.M. Kalaw Branch to remit the dollar equivalent
buying US dollars from a local bank (in this case, of P183,805,291.25 to Credit Lyonnais. Both
United Coconut Planters Bank or UCPB T.M. explanations, naturally, were diametrically
Kalaw Branch), which local bank was supposed opposed.[7]
to remit the US dollars to an off-shore bank. This
off-shore bank (in this case, the Credit Lyonnais,
New York) was then supposed to remit the yen
The prosecution theorizes that the accused diverted the funds
equivalent of the US dollars to a third bank (in
this case, the Bank of Japan, Tokyo Branch) covered by the two PNB Managers checks by falsifying a
which would then credit the funds to the account
commercial document called an Application for Cashiers Check
of the ADB. The contracts of NPC with the
concerned banks (embodied in three [3] Payment (ACC) by inserting an account number (A/C #111-1212-04) of
Instructions) included a value date (which was
a private individual after the name of the payee, UCPB, T.M.
July 13, 1990), the mere arrival of which would
trigger the above-mentioned procedure, Kalaw Branch. It claims that NPC did not authorize the insertion
culminating in the payment to ADB of the NPC
considering that the Payment Instruction (PI) issued by NPC
obligation in the foreign currency agreed upon.
instructing PNB to prepare a Managers check to be charged to
On value date, per routing procedure, Credit
NPCs savings account did not contain any account number.
Lyonnais (the second bank) remitted Japanese
Yen 1,143,316,130.00 to the Bank of Japan, Through the insertion, the accused allegedly succeeded in
diverting the funds from the UCPB, T.M. Kalaw Branch in favor To be found guilty of malversation, the prosecution must prove
of Raul Gutierrez @ Raul Nicolas @ George Aonuevo @ Mara the following essential elements:
Aonuevo, who is still at large.
Appellants contention lacks merit. Malversation may be Even on the putative assumption that the
committed either through a positive act of misappropriation of evidence against petitioner yielded a case of
malversation by negligence but the information
public funds or property or passively through negligence by was for intentional malversation, under the
allowing another to commit such misappropriation.[9] To circumstances of this case his conviction under
the first mode of misappropriation would still be
sustain a charge of malversation, there must either be criminal in order. Malversation is committed either
intentionally or by negligence. The dolo or the
intent or criminal negligence[10] and while the prevailing facts culpa present in the offense is only a modality in
of a case may not show that deceit attended the commission of the perpetration of the felony. Even if the mode
charged differs from mode proved, the same
the offense, it will not preclude the reception of evidence to offense of malversation is involved and
prove the existence of negligence because both are equally conviction thereof is proper.[12]
More pointedly, the felony involves breach of public conviction on the basis of negligence is neither novel nor of first
trust, and whether it is committed through deceit or negligence, impression. In Samson v. Court of Appeals, et al.,[13] we ruled
the law makes it punishable and prescribes a uniform penalty that an accused charged with willful or intentional falsification
therefor. Even when the information charges willful can validly be convicted of falsification through negligence,
malversation, conviction for malversation through negligence thus:
himself and the result has proven beneficial to
While a criminal negligent act is not a simple him. Certainly, having alleged that the
modality of a willful crime, as we held in Quizon falsification has been willful, it would be
vs. Justice of the Peace of Bacolor, but a distinct incongruous to allege at the same time that it was
crime in itself, designated as a quasi offense in committed with imprudence for a charge of
our Penal Code, it may however be said that a criminal intent is incompatible with the concept
conviction for the former can be had under an of negligence.
information exclusively charging the
commission of a willful offense, upon the theory
that the greater includes the lesser offense. This
is the situation that obtains in the present case. In People v. Consigna, et al.,[14] we ruled that the afore-stated
Appellant was charged with willful falsification rationale also applies to the felony of malversation, that is, that
but from the evidence submitted by the parties,
the Court of Appeals found that in effecting the an accused charged with willful malversation, in an information
falsification which made possible the cashing of containing allegations similar to the present case, can be validly
the checks in question, appellant did not act with
criminal intent but merely failed to take proper convicted of the same offense of malversation through
and adequate means to assure himself of the negligence where the evidence sustains the latter mode of
identity of the real claimants as an ordinary
prudent man would do. In other words, the perpetrating the offense.
information alleges acts which charge willful
falsification but which turned out to be not willful
but negligent. This is a case covered by the rule
when there is a variance between the allegation
and proof, and is similar to some of the cases Appellant next claims that he should be acquitted since his
decided by this Tribunal. conviction was based on his sworn statement, transcript of
.... stenographic notes from which the sworn statement was taken
and the NBI Report, which are incompetent evidence. He
The fact that the information does not allege that
the falsification was committed with imprudence contends that his sworn statement was taken without the benefit
is of no moment for here this deficiency appears of counsel, in violation of his constitutional right under Section
supplied by the evidence submitted by appellant
12, Article III of the 1987 Constitution.
deprived of his freedom of action in any
significant manner. And, the rule begins to
operate at once as soon as the investigation
Paragraph 1, Section 12, Article III of the 1987 Constitution
ceases to be a general inquiry into an unsolved
states that crime and direction is then aimed upon a
particular suspect who has been taken into
custody and to whom the police would then direct
interrogatory question which tend to elicit
incriminating statements.[17]
Section 12. (1). Any person under investigation
for the commission of an offense shall have the
right to be informed of his right to remain silent
and to have competent and independent counsel
Succinctly stated, custodial investigation refers to the
preferably of his own choice. If the person cannot
afford the services of counsel, he must be critical pre-trial stage when the investigation ceases to be a
provided with one. These rights cannot be
general inquiry into an unsolved crime but has begun to focus
waived except in writing and in the presence of
counsel. on a particular person as a suspect.[18] Such a situation
contemplated has been more precisely described thus where
do not come within the purview of Section 12. The protective investigation extends to a spontaneous statement, not elicited
mantle of the constitutional provision also does not extend to through questioning by the authorities, but given in an ordinary
admissions or confessions made to a private individual,[22] or manner whereby the accused orally admits having committed
to a verbal admission made to a radio announcer who was not the crime,[26] nor to a person undergoing an audit examination
part of the investigation,[23] or even to a mayor approached as because an audit examiner is not a law enforcement officer.[27]
he was taken into custody. As such, the inquest was still a essence of the constitutional safeguard is protection from
general inquiry into an unsolved offense at the time and there coercion. The interview where the sworn statement is based was
was, as yet, no specific suspect. conducted by NPC personnel for the NPCs administrative
investigation. Any investigation conducted by the NBI is a
proceeding separate, distinct and independent from the NPC
inquiry and should not be confused or lumped together with the
Much less can appellant claim that he was in police
latter.
custody because he was confined at the time at the Philippine
Heart Center and he gave this statement to NPC personnel, not
to police authorities.[29] Appellant can hardly claim that, under
the prevailing circumstances at the time, whatever degree of Appellant invokes Galman v. Pamaran[30] in insisting
compulsion may have existed went beyond the borders of the that the constitutional safeguard should have been applied
unobjectionable where impermissible levels of duress would notwithstanding that he was not yet arrested or under detention
force him into making false and incriminating declarations at the time. He also invites our attention to the pronouncements
against his interest. While he may have been persuaded into of Fr. Joaquin G. Bernas[31] that the right to counsel is
doing so, he cannot feign that he was intimidated in such a way available if a person is in custody, even if he is not a suspect; or
as to bring his statements within the ambit of the exclusionary even if not yet in custody but he is a suspect.
constitutional provision.
from a person by illegal use of fear, whether by force, threats or sworn statement were admissible in evidence, the contents
any undue exercise of power.[32] In the context of obtaining an thereof may not be sufficient to sustain a conviction. He
contends that although his statement was supposedly gathered
admission, extorting means compelling or coercing a confession
from the transcript of stenographic notes of the conversation
or information by any means serving to overcome his power of
between him and Atty. Bagcal, neither Atty. Bagcal nor the
resistance, or making the confession or admission
person who actually prepared the sworn statement was
involuntary.[33] In this case, we find nothing on record to
presented. Therefore, the sworn statement is hearsay.
support appellants claim that his statements were extorted from
him.
in any significant way of his liberty, Fr. Bernas[34] qualified inquired whether or not appellant was coerced or intimidated by
this statement by saying that [J]urisprudence under the 1987 anybody when the statement was taken.[38] Appellant denied
Constitution, however, has consistently held, following that he was coerced or intimidated,[39] affirmed the contents of
the document as a true reflection of his statements,[40] and is strange that appellant, who is supposedly astute in business
signed the same.[41] It need not be overemphasized that the matters as he then occupied the position of Foreign Trader
Analyst of the NPC, nevertheless felt it unnecessary to execute
sworn statement is a duly notarized document which has in its
another affidavit retracting the same after his recovery from
favor the presumption of regularity and, thus, it can be
illness. Verily, evidence to be believed must not only proceed
contradicted only by clear and convincing evidence. Without
from the mouth of a credible witness, but must be credible in
that sort of evidence, the presumption of regularity, the
itself such as the common experience and observation of
evidentiary weight conferred upon such public document with
respect to its execution, as well as the statements and the mankind can approve as probable under the circumstances.[43]
CONSUELO YNARES-
SANTIAGO
ADOLFO S. AZCUNA
Associate Justice
Associate Justice
WE CONCUR:
CERTIFICATION
[3] Id. at 38.
[23] People v. Ordoo, 390 Phil. 649 [2000]. [36] TSN, October 8, 1996, p. 8.
[24] People v. Zuela, 380 Phil. 568 [2000]. [37] Id. at 13.
[25] People v. Endino, G.R. No. 133026, February 20, 2001, 352 [38] Id.
SCRA 307.
[39] Id. at 14.
People v. Baloloy, G.R. No. 140740, April 12, 2002, 381
[26]
SCRA 31. [40] Id. at 16.
[27]Navallo v. Sandiganbayan, G.R. No. 97214, July 18, 1994, [41] Id. at 17.
234 SCRA 175.
Barcenas v. Tomas, G.R. No. 150321, March 31, 2005, 454
[42]
[28] TSN, January 22, 1996, p. 17. SCRA 593, 609.