Counter Affidavit

Republic of the Philippines )
Province of Pampanga )
City of San Fernando ) s.s
COUNTER AFFIDAVIT
I, Police Staff Sergeant Arnold Bautista Walican, a member of Philippine National

Police and presently assigned at the Apalit Municipal Police Station with postal address
at Brgy San Juan, Apalit, Pampanga, after having been sworn in accordance with law
do hereby depose and say:
1. I am being investigated by the PRO3, RIDMD for an administrative

complaint for alleged Grave Irregularity in the Performance of Duty (______________)
under Rule 21, Sec. 2C para 2 sub para (c) of NAPOLCOM MC No. 2016-002, "reveal
secret or confidential police matters and information which jeopardize police
mission and operations, or which cause injury or damage to citizens".
2. That pursuant to the initial evaluation report on the complaint dated June 26,
2019 as approved by PCOL JEAN SALVADOR FAJARDO, Provincial Director of
Pampanga PPO, the allege offense committed by the undersigned pertains to “Part III,
Rule 21, Sec. 2C para 2 sub para (c) of NAPOLCOM MC No. 2016-002, which provides
Serious Irregularity in the Performance of Duty classified as Grave Offense” - reveal
secret or confidential police matters and information which jeopardize police mission
and operations, or which cause injury or damage to citizens. Pursuant to Rule 22,
Section 2 of said NAPOLCOM Memorandum circular, the range of penalties for grave
offenses shall be from Sixty days to Six (6) months suspension (minimum), One (1) rank
demotion (medium), and Dismissal from the Service (maximum), in which case
Chapter Three, Article 208 of the Revised Penal Code which provides, "Prosecution of
Offenses; negligence and tolerance - The penalty of prison correctional in its minimum
period and suspension shall be imposed upon any public officer or officer of the law,
who, in dereliction of the duties of his office, shall maliciously refrain from instituting
prosecution for the punishment of violators of the law, or shall tolerate the commission
of offenses. Pursuant to Article 27 of Act No. 3815, the duration of the penalties of
prison correctional, suspension and destierro shall be from six (6) months and one (1)
day to six (6) years, except when the suspension imposed as an accessory penalty, in
which case, its duration shall be of the principal penalty.
3. That I vehemently deny the aforementioned allegations as the instant charge

is not only erroneous, but also is false and has no factual and legal basis.
4. That the actual facts surrounding the instant case are as follows:
a. On December 17, 2018 at around 8:45 in the evening an incident for illegal
discharge of firearms was reported to the Hagonoy Municipal Police Station. Said report
was responded by ____________________ and ____________ who arrested and
brought the suspect to the station;
b. As the duty investigator, the arrested person was brought to me for the
conduct of investigation. That since it is a Saturday, I informed the complainant if he
wants to just return the following Monday since there was no office to file the case at
that time. The complainant agrees and told me that he will just return the following
Monday to sign his affidavit;
c. That Monday, I waited the whole morning for the said complainant so that I can
continue with the investigation and finish his affidavit which is necessary in the filing of
the said case as I have no personal knowledge of what happened on said incident. The
said affidavit will be the basis for the filing of the instant case against the prisoner as he
was the only witness in said incident as the arresting officers did not also witnessed the
alleged illegal discharge of firearm committed by the suspect;
d. I even tried reminding the complainant of the said affidavit by calling him on his
given cellular phone number that Monday morning, December 19, 2018 since the
prescribed period of detention of the suspect is already expiring. However, I cannot
connect to the number provided to me by the complainant. Screenshots of the call logs
is hereto attached as Annex "1";
e. Considering that the period of detention for the suspect is about to lapse, and
complainant has yet to arrive at the police station, I have no recourse but release the
suspect otherwise I can be charged for arbitrary detention under Article 124 of the
Revised Penal Code;
f. At around 3 PM on said day, the complainant belatedly arrived and asked me

what happened and why the suspect was released. I told him that I was waiting for him
so that I could finish his affidavit and all documents related to the filing of the case as it
will all depend on his statement, but he was nowhere that morning;
g. I however advised him that the case is not lost as he can still file the same but
he has to file the same first before the barangay captain as it is a requisite for that
particular case. As a matter of fact, he adhered to my advice and file the same in their
barangay as evidenced by a Certificate to File Action issued by the barangay that is
attached to his Complaint Sheet;
h. That I never heard from him again after that instance which I assume that he
has already settled with the suspect considering that they are in laws, until this instant
charge.
5. That due to aforementioned facts, I vehemently and categorically deny
that I have intentionally and maliciously committed the aforementioned allegation that is
being levelled against me.
6. The elements of dereliction of duty in the prosecution of offenses pursuant

to Article 208 of the Revised Penal Code are as follows:
a) Offender is a public officer or officer of the law who has a duty to cause the
prosecution of, or to prosecute offenses;
b) There is a dereliction of the duties of his office, that is, knowing the
commission of the crime, he does not cause the prosecution of the criminal, or knowing
that a crime is about to be committed, he tolerates the commission;
c) Offender acts with malice and deliberate intent to favour the violator of law.
7. Based on the following aforementioned facts and also that of the

complainant's narration of facts, the aforementioned elements to constitute the violation
of law for which I am charged is not all present. Hence, no crime or violation of law that
can be levelled against me.
8. As a matter of fact, the probable and only element present in the instance
case is that I am a public officer, the other two elements is not present and inexistent.
9. Clearly, there is no dereliction of the duties of my office. I cannot be said to

have not cause the prosecution of the criminal case nor tolerates the commission of the
case. As a matter of fact, the suspect was arrested and detained at the Hagonoy
Municipal Police Station. Moreover, I initially conducted the investigation of the incident
that caused the arrest of the suspect. I even consulted the complainant if he wants to
just continue the investigation and taking of the affidavit the following Monday as it is
Saturday and the complainant agrees.
10. I even tried to call him twice on his cellular phone but I can't seem to reach
or connect with him. This can be considered as due diligence on my part as I was never
remised on my duties as investigator.
11. That considering that there is a prescribed period wherein police officers
can validly detained a suspect for a certain crime is about to lapse at tha time. I cannot
detained the suspect in perpetuity to wait for the complainant to arrive and sign his
affidavit. Otherwise, of I continue to detain the suspect and still wait fot the complainant.
I can be held liable for violation of Article 124 of the Revised Penal Code for Arbitrary
Detention.
12. Clearly, the aforementioned actions that I have undertaken cannot
constitute as action with malice and deliberate intent to favour the violator of law or the
suspect. The act of releasing the suspect but rather is the legal thing to do. Otherwise,
to prolong the detention of said suspect and to wait for the uncertain return of the
complainant will be illegal and oppressive. I am just doing what is legal and just
considering the circumstances.
13. As police officers, we are trained to follow the law, rules and regulations.
We cannot depend on the wimps and caprices of any party whether a complainant or an
accused. Police officers are often placed in a position where he/she has to act that may
not be favourable to a particular party. But police officers have to do it, and must do it in
accordance with law, just like in the instant case. The undersigned police officer is only
doing his job in accordance with the law, and as such, he cannot be held to answer
based only on the premise that a party is not happy with what happened, despite of his
own diligence.
14. Considering the aforementioned, there is neither legal nor factual basis to
hold such administrative complaint filed against me. Thus, the said complaint should be
dismissed outright and consider the same as dropped and closed.
15. Moreover, that in the undersigned respondent's almost nine years of

service to the organization where I have never been convicted of any administrative
case shows that the herein respondent cannot be considered as a liability of the
organization. As a matter of fact, the undersigned respondents were able to receive
various commendations for his meritorious contributions to various police operations.
Furthermore, said allegations are only committed by the undersigned respondent in
good faith as I have done said actions pursuant to the law rules and regulations. Copies
of my PNP PDS and service record are also hereto attached as Annex "2" and "3".
PRAYER
WHEREFORE, in view of the foregoing, it is respectfully prayed that the instant

Administrative case be DROPPED AND CLOSED for lack of factual and legal basis.
The respondent further prays for such other reliefs just and equitable under the
premises.
Done this _____ day of _____________ 2019 at City of San Fernando,

Pampanga.
P03 ________________
Respondent-Affiant
SUBSCRIBED AND SWORN to before me this __________ day of ___________

2019, P03 ____________exhibiting to me his PNP ID with ID No. ______________
issued on January _______, 2019 at Quezon City.
WITNESS MY HAND AND SEAL in the date and place first above written.
Doc. No. ____________

Page No. ____________
Book No. ____________
Series of _____________
FIRST DIVISION
G.R. No. 199271, October 19, 2016
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JEHAR REYES, Accused-

Appellant.
DECISION
BERSAMIN, J.:
Compliance with the guidelines on the preservation of the chain of custody of the
dangerous drugs subject of a prosecution for the illegal sale of dangerous drugs must
be clearly and convincingly established by the State. Any lapse in the chain of custody
must be affirmatively explained by the Prosecution; otherwise, the chain of custody will
be held to be broken and insufficient to support a conviction of the accused. The
presumption of regularity of the performance of official duty in favor of the arr sting
officers cannot prevail over the presumption of innocence in favor of the accused.
The Case
This appeal focuses on the decision promulgated on June 13, 2011 in CA-G.R. CEB CR-
H.C. No. 00792 entitled People v. Jehar Reyes,1 whereby the Court of Appeals (CA)
affirmed the judgment rendered on March 9, 2007 by the Regional Trial Court (RTC),
Branch 10, in Cebu City finding accused Jehar Reyes guilty as charged of a violation of
Section 5, Article II of Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of
2002).2 chanrobleslaw
Antecedents
The accusatory portion of the information charging the violation of Section 5 of R.A. No.
9165 reads:
chanRoblesvirtualLawlibrary
That on or about the 27th day of November, 2002 at 2:00 o'clock in the afternoon, more
or less, at the Municipality of Minglanilla, Province of Cebu, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with deliberate intent
and without proper authority or permit, did then and there wilfully, unlawfully and
feloniously SELL, DELIVER and GIVE away to a poseur buyer for the sum of ONE
THOUSAND PESOS (PI ,000.00), Philippine Currency, bill marked money with Serial
Nos. HNOI9541, EX212112, ZW886460, FQ954616, DA723857, Q0[0]6140, DE709987,
SY315980, FQ950975, BB341926 three (3) silver paper packets of white crystalline
substance weighing 1.44 grams, which when subjected to laboratory examination gave
positive results for the presence of Methamphetamine Hydrochloride, a regulated drug.
CONTRARY TO LAW.3 chanroblesvirtuallawlibrary
After the accused pleaded not guilty to the information, the State presented as
witnesses PO2 Jesus Rudson Villahermosa, PO1 Januario Miro, PSINSP Arnel Banzon,
PO2 Marlon Lumayag and Jude Daniel Mendoza, 4 while the Defense had the accused
and Cesar Canada as its own witnesses.5 chanrobleslaw
The CA summarized the respective versions of the parties m the assailed decision as
follows:
x x x [O]n 27 November 2002, at around 2:00 p.m., a buy-bust operation was

conducted at accused-appellant's residence in Sitio Cayam, Barangay Ward I, Tiber,
Minglanilla, Cebu. The team was composed of Senior Police Inspector Arnel Banzon
(hereafter, "Banzon"), PO2 Jesus Rodson Villahermosa (hereafter, "P02 Villahermosa")
and PO1 Januario Miro (hereatter, "PO1 Miro") (both poseur-buyers). The backup team
was composed of Senior Police Inspector Glenn Mayan, SPO2 Jesus Rojas, SP[O]1
Eduardito Brigoli, P[O]3 Danilo Lopez, P[O]2 Percival Charles, P[0]3 Marlon Lumayag
(hereafter P[O]3 Lumayag), and P[O]2 Aristocles.
The following items were recovered from accused-appellant: three plastic packs
(including the plastic pack bought by the poseur-buyers from accused-appellant),
containing a (sic) white crystalline substance; and the buy-bust money of ten P100.00
bills with serial numbers HN[0]19541, EX212112, ZW886460, FQ954616, DA723857,
QO[0]6140, DE709987, SY315980, [F]Q950975, BB341926. The total weight of the
contents of the three plastic packs was 1.44 grams. When subjected to laboratory
examination, the contents tested positive for methamphetamine hydrochloride,
otherwise known as "shabu". Accused-appellant was thereafter charged with the crime
of Illegal Sale of Shabu under Article 2, Section 5, R.A. 9165.
P[O]2 Villahermosa, P[O]1 Miro, Banzon, P[O]3 Lumayag, and Jude Daniel Mendoza,
testified for the Prosecution. The evidence of the Prosecution is summarized thus:
Several weeks before 27 November 2002, P[O]2 Villahermosa and P[O]1 Miro
conducted a 2-week surveillance on accused-appellant, a reported drug pusher, residing
at Sitio Cayam, Barangay Ward I, Tiber, Minglanilla, Cebu. The surveillance confirmed
accused-appellant was engaged in the sale of illegal drugs. A team to conduct a buy-
bust operation was formed. P[O]2 Villahermosa and P[O]1 Miro were designated as the
poseur-buyers, while Banzon, Senior Police Inspector Glenn Mayan, SP[O]2 Jesus
Rojas, SP[O]1 Eduardito Brigoli, P03 Danilo Lopez, P[O]2 Percival Charles,
P[O]3Lumayag, and P[O]2 Aristocles, were designated as back-up. The buy bust money
consisting of ten ill 00.00 bills, was marked with the initials "J.C.R." of SP[O]2 Rojas.
PO2 Villahermosa and PO1 Miro proceeded on foot to the target site, the house of the
accused-appellant, while the back-up team members positioned themselves about 5
meters away to observe the transaction.
P[O]2 Villahermosa approached the front of accused-appellant's house and called out
the latter's name. Accused-appellant went out of his house. P[O]2 Villahermosa told
accused-appellant he wanted to buy Fl ,000.00 worth of shabu. Accused-appellant took
one plasric pack from his pocket, and gave it to P[O]2 Villahermosa. P[O]2 Villahermosa
in turn, handed the ten pieces of P100.00 bills to accused-appellant. Upon receipt of the
P1000.00 buy-bust money, P[O]2 Villahermosa immediately accosted accused-
appellant. P[O]1 Miro removed his cap, the pre-arranged signal to the backup team,
that the transaction had been completed. P[O]2 Villahermosa informed the accused-
appellant he was under arrest, and informed him of his constitutional rights. He frisked
accused-appellant, and recovered the following: two more plastic packs that contained
a white crystalline substance; and the buy-bust money of ten P100.00 bills.
Accused-appellant was brought to the police office, and PO1 Miro marked the items
seized, as follows: "JR-B" (for the plastic pack of shabu subject of the buy-bust); "JR-1"
and "JR-2" (for the 2 plastic packs of shabu recovered from the frisking). PO1 Miro
prepared the letter-request tor laboratory examination.
On 27 November 2002, at 5:20 p.m., PO1 Miro delivered the letter-request for
laboratory examination, and the plastic packs marked "JR-B", "JR-1" and "JR-2", to PO1
Fiel, the clerk on duty at the PNP Crime Laboratory. P[O]1 Fiel turned over the letter-
request, and the three plastic packs, to the Chemistry Branch for examination.
On 28 November 2002, Jude Daniel Mendoza, the forensic analyst, conducted the
laboratory examination on the contents of the three plastic packs. Per Chemistry Report
No. D-2390-2002, the contents of the three packets tested positive for
Methamphetamine Hydrochloride.
Accused-appellant was thereafter charged with violating Article 2, Section 5 of R.A.

9165, or the crime of illegal sale of drugs.
Cesar Cañada (hereafter, "Cañada"), and accused-appellant himself: testified for the
Defense. The evidence of the Defense is summarized thus: at around 2:00 p.m. of 27
November 2002, accused appellant was sleeping at his elder sister's house, when
several men suddenly barged in, and searched the premises. The men did not have any
search warrant. They did not find contraband, nor did they receive money from
accused-appellant.
Cañada is a neighbor of the accused-appellant. At around 2:00 p.m., of 27 November
2002, he was at a chapel about 10 meters from accused-appellant's house. He heard a
loud bang on the door of accused appellant's house, and saw five men enter it. The five
men later left the house with the accused-appellant, on board a police vehicle. 6 chanroblesvirtuallawlibrary
Ruling of the RTC
On March 9, 2007, the RTC convicted the accused of the crime charged, disposing:
WHEREFORE, PREMISES CONSIDERED, this Court finds the accused JEHAR REYES Y
PREMACIO, GUILTY of violating Section 5, Article II of Republic Act No. 9165. He is
sentenced to suffer in prison the penalty of life imprisonment and to pay a fine of
P500,000.00
The three plastic packs containing methamphetamine hydrochloride are ordered

confiscated and shall be destroyed in accordance with law.
SO ORDERED.7 chanroblesvirtuallawlibrary
Judgment of the CA
The accused appealed,8 contending that the illegal sale of shabu had not been
established beyond reasonable doubt; that the buy-bust operation had not been carried
out in accordance with law; that the presumption of regularity in the performance of
official duty did not apply because the law enforcers had deviated from the standard
conduct of official duty as provided for in the law; that the arresting police officers had
failed to make an inventory report of the confiscated items; that the markings on the
confiscated items were not clearly established; that the procedural lapses of the police
officers created doubt as to the identity of the confiscated items; and that,
consequently, the Prosecution did not establish the elements of the crime charged.
On June 13, 2011, the CA affirmed the conviction of the accused, holding and ruling
thusly:
In a Prosecution for illegal sale of dangerous drugs, the following elements must be
duly established: (1) proof that the transaction or sale took place; and (2) the
presentation in court of the corpus delicti or the illicit drug as evidence.
The first element is present. There was evidence that the sale of drugs between
accused-appellant, and the poseur-buyers PO2 Villahermosa and PO1 Miro, took place.
PO2 Villahermosa testified that several weeks before the actual buy-bust operation on
27 November 2002, he and PO1 Miro conducted a 2-week surveillance on accused-
appellant, a reported drug pusher, residing at Sitio Cayam, Barangay Ward I, Tiber,
MingLanilla, Cebu. The surveillance confirmed accused-appellant was engaged in the
sale of illegal drugs. A buy-bust team was formed. P[O]2 Villahermosa and P[O]1 Miro
were designated as the poseur-buyers, while Banzon, Senior Police Inspector Glenn
Mayan, SP02 Jesus Rojas, SP[O]1 Eduardito Brigoli, P[O]3 Danilo Lopez, P[O]2 Percival
Charles, P[O]3 Lumayag, and P[O]2 Aristocles were designated as back-up. P[O]2
Villahermosa and P[O]1 Miro proceeded on foot to the target site, the house of the
accused-appellant, while the backup team members positioned themselves about five
meters away to observe the transaction. P[O]2 Villahermosa approached the front of
accused-appellant's house and called out his name. Accused-appellant went out of his
house. P[O]2 Villahermosa told accused-appellant he wanted to buy 1,000.00 worth of
shabu. Accused-appellant took one plastic pack from his pocket, and gave it to P[O]2
Villahermosa. P[O]2 Villahennosa in turn, handed to accused appellant the ten pieces
of-P100.00 bills. Upon receipt of the P1,000.00 buy-bust money, P[O]2 Villahermosa
immediately accosted accused appellant P[O]1 Miro removed his cap, the pre-arranged
signal to the backup team, that the transaction had been completed. PO2 Villahermosa
informed the accused-appellant he was under arrest, and informed him of his
constitutional rights. He frisked accused-appellant. PO2 Villahermosa and (sic)
recovered from accused appellant the following: two more plastic packs that contained
a white crystalline substance; and the buy-bust money of ten P100.00 bills.
The second element is present. The corpus delicti, or the illicit drug subject of the sale,
was presented in Court.
xxxx
In the case at bar, the identity of the plastic pack of shabu subject of the buy-bust
operation was sufficiently established by the Prosecution. PO1 Miro marked the plastic
packs of shabu seized from the accused appellant at the office. The plastic pack of
shabu subject of the buy-bust operation was marked "JR-B", while the two plastic packs
of shabu recovered from accused-appellant after he was frisked by P[O]2 Villahermosa
were marked "JR-1'' and "JR-2". Clearly, the identity of the corpus delicti was duly
preserved and established by the Prosecution. hence there is no doubt as to whether
what was presented in Court, was the same plastic pack of shabu purchased from the
accused-appellant at the buy-bust operation.
In addition, the evidence the Prosecution presented, is complete to establish the

necessary links in the handling of the shabu subject of the buy-bust operation, from the
time of its seizure, until its presentation in Court. In other words, the Prosecution was
able to comply with the chain of custody rule.
xxxx
It is clear that the integrity and the evidentiary value of the seized drugs were
preserved. No convincing proof was shown that the evidence submitted by the
Prosecution had been tampered, from the time they were recovered from accused-
appellant, until they were turned over for examination. This Court, therefore, finds no
reason to overturn the findings of the court a quo that the drugs seized from accused-
appellant, were the same ones presented during trial. The chain of custody of the drugs
seized from accused-appellant was unbroken, contrary to the assertion of accused-
appellant.
Accused-appellant argues: since the police officers who arrested him did not make an
inventory report of the items they confiscated from him, and that the markings on said
items were not clearly established, the presumption of regularity in the performance of
official duty no longer applies; the conduct of the police officers in the case at bar
grossly violated Section 21(1), Article 2 of R.A. 9165; these omissions on the part of
the police officers indicate that the operation they conducted was a sham, therefore
illegal
We do not agree.
xxxx
x x x [I]t has been ruled time and again that non-compliance vith Sec. 21 of the IRR
does not make the items seized inadmissible. What is imperative is ''the preservation of
the integrity and the evidential value of the seized items as the same would be utilized
in the determination of the guilt of innocence ofthe accused." Given the Prosecution's
evidence, We rule that the presumption of regularity in the performance of official
duties has not been overturned. The presumption remains because the Defense failed
to present clear and convincing evidence that the police of11cers did not properly
perform their duty or that they were inspired by an improper motive. In cases involving
violations of Dangerous Drugs Act, credence should be given to the narration of the
incident by the prosecution witnesses especially when they are police officers who are
presumed to have performed their duties in a regular manner, unless there is evidence
to the contrary.
xxxx
WHEREFORE, the appeal is DENIED. The court a quo's DECISION dated 9 March
2007 is AFFIRMED in toto.
SO ORDERED.9 chanroblesvirtuallawlibrary
Issue
Did the CA err in affirming the conviction of the accused for the violation of Section 5,
Article II of R.A. No. 9165?
Ruling of the Court
This appeal opens the entire record to enable the Court to determine whether or not the
findings against the accused should be upheld or struck down in his favor. 10 chanrobleslaw
After careful examination and review of the record, we find merit in the appeal, and,
accordingly, acquit the accused on the ground that the Prosecution did not establish his
guilt beyond reasonable doubt.
1.
The State erred in charging the accused
with illegal sale of 1.44 grams of shabu
In order to charge a person with and convict him for the illegal sale of dangerous drugs
under Section 5 of R.A. No. 9165, the State must allege and establish the concurrence
of the following essential elements, namely: ( 1) the identity of the buyer and the
seller, the object of the sale and the consideration; and (2) the delivery of the thing
sold and its payment. The delivery of the illicit drugs to the poseur-buyer and the
receipt by the seller of the marked money consummate the illegal sale of dangerous
drugs during the buy-bust transaction.11 chanrobleslaw
Were the elements of the offense charged competently and clearly established by the
Prosecution?
On direct examination, P02 Villahermosa, who was the poseur buyer during the buy-
bust operation, testified as follows:
Q When you arrived at Sitio Cayam, where was your target Jehar Reyes?
A They were in the house sir.
Q Was he inside or outside his house?
A He was sitting inside and came out when he saw us.
xx
xx
Q You said that Jehar Reyes, when he saw you came out, after that what
happened?
A Immediately I asked Jehar Reyes if we can buy shabu in the amount of
P1,000.00.
Q What was the answer of Jehar Reyes?
A He nodded, meaning yes.
Q After Jehar Reyes nodded, indicating that he was amenable, what did
he do next?
A He took one pack of shabu from his packet (sic) worth P1,000.00
Q How about you, what did you do with the money in your possession?
A I received the pack of shabu and in return I give (sic) to him the
P1,000.00.
Q You mean to say that the one pack of shabu was first given to you
before you give (sic) the P1 ,000.00?
A Yes.
Q What else happened?
A Police Officer Miro who was standing beside me executed the pre-
arranged signal.
Q What was that signal about?
A He removed his bull cap after the transaction.
Q After that what happened next?
A Immediately my companions rushed up to the buy bust area.
Q What did your companions do?
A They came to assist me in the arrest of the accused.
xx
xx
Q When the other members of the team rushed up Lo your position, what
did you do to Jehar Reyes?
A When I held him, I informed him of his violation.
Q What did you inform him?
A I informed him that he has committed, he has violated Section 5, Article
II of RA 9165.
Q What was the answer of Jehar Reyes?
A There was no reaction sir.
Q After that since you held Jehar Reyes, what did you do?
A Immediately I frisked him.
Q When you frisked him, what happened?
A I was able to recover One thousand Pesos which was the buy bust
money I give (sic) to him and another 2 packets of shabu in his other
pocket. 12
PO1 Villahermosa further testified:

Q Upon handing to the accused this money worth one thousand pesos, what
did the accused do after receiving the said amount?
A She (sic) got one pack of shabu from her (sic) pocket.
Q If shown to you this one pack of shabu, will you be able to identify it
before this Honorable Court?
A Yes, Sir.
Q I'm showing to you three (3) heat-sealed transparent plastic packets of
white crystalline substance, is this the specimen that you were able to
recover and buy from the accused?
A (Witness is pointing to a pack marked .28 gram with letters JR-B which
was the one given to me by the accused.)
Q What (sic) you mean by being the one given to me by the accused?
A In exchange of one thousand pesos.
Q I have here another two (2) packets marked JR-1 and another JR-2.
Will you be able to identify these two packets of shabu?
A Yes.
Q What are these two specimens?
13
A These were the items confiscated from the accused after his arrest.
In this regard, the CA, affirming the findings of the RTC, observed:
x x x Accused-appellant took one plastic pack from his pocket, and gave it to P[O]2
Villahermosa. P[O]2 Villahermosa in turn, handed the ten pieces of P100.00 bills to
accused-appellant. Upon receipt of the P1,000.00 buy-bust money, P[O]2 Villahermosa
immediately accosted accused-appellant. P[O]1 Mira removed his cap, the pre-arranged
signal to the backup team, that the transaction had been completed. PO2 Villahermosa
informed the accused-appellant he was under arrest, and informed him of his
constitutional rights. He frisked accused-appellant, and recovered the following:
two more plastic packs that contained a white crystalline substance; and the
buy-bust money of ten P100.00 bills. 14 (Bold Emphasis supplied.)
The lower courts came up with common findings to the effect that three plastic packs
of shabu weighing a total of 1.44 grams had been confiscated from the accused by the
buy-bust team, the first pack being marked JR-B, and the second and third packs being
marked JR-1 and JR-2. Based on the aforequoted testimony of the poseur buyer,
however, the essential elements of the offense of illegal sale of dangerous drugs
charged against him were only with regard to the transaction directly involving
the shabu contained in the pack marked JR-B. This is because there was no delivery of
the shabu contained in the packs marked JR-1 and JR-2 and, necessarily, there was no
corresponding payment to speak of. In short, no transaction occurred as to the latter
dangerous drugs. He should consequently be separately charged with illegal possession
of dangerous drugs as defined and penalized under Section 11 of R.A. No. 9165 in
respect of the shabu contained in the packs marked JR-1 and JR-2 that were seized
from him after he had received the buy-bust money for the shabu contained in the pack
marked JR-B. Indeed, the seizure was the actual result of the body frisking by PO2
Villahermosa right after his being informed of his constitutional rights, not of the buy-
bust transaction. We stress that the elements of this offense of illegal possession
of shabu, a dangerous drug, are that: (1) the accused was in possession of the
dangerous drug; (2) his possession was not authorized by law; and (3) he freely and
consciously possessed the drug.15 chanrobleslaw
Even if illegal sale of dangerous drugs punished under Section 5 of R.A. No. 9165 the
offense charged - might necessarily include the illegal possession of dangerous drugs
under Section 11 of R.A. No. 9165, the accused could only be found guilty of the first
offense vis-a-vis the shabu contained in the pack marked JR-B. He could not be held
guilty of the illegal possession of dangerous drugs in violation of Section 11 of R.A. No.
9165 because no information had been filed to charge such offense. It is fundamental
that a person is to be tried and found guilty only of the offense charged in the
information, or of the offense proved that is necessarily included in the offense charged,
conformably with Section 4, Rule 120 of the Rules of Court, which states:
Section 4. Judgment in case of variance between allegation and proof— When there is
variance between the offense charged in the complaint or information and that proved,
and the offense as charged is included in or necessarily includes the offense proved, the
accused shall be convicted of the offense proved which is included in the offense
charged, or of the offense charged which is included in the offense proved.
2.
The guilt of the accused was not established beyond reasonable doubt because
the State did not satisfactorily explain the substantial lapses committed by the
buy-bust team in preserving the chain of custody
The foregoing notwithstanding, the Court resolves to acquit the accused of the crime
ofviolation of Section 5 of R.A. No. 9165 charged.
To convict the accused for the illegal sale or the illegal possession of dangerous drugs,
the chain of custody of the dangerous drugs must be clearly and competently shown
because such degree of proof is what was necessary to establish the corpus
delicti.16 In People v. Alcuizar,17 the Court has underscored the importance of ensuring
the chain of custody in drug related prosecutions, to wit:
The dangerous drug itself, the shabu in this case, constitutes the very corpus delicti of
the offense and in sustaining a conviction under Republic Act No. 9165, the identity and
integrity of the corpus delicti must definitely be shown to have been preserved. This
requirement necessarily arises from the illegal drugs unique characteristic that renders
it indistinct, not readily identifiable, and easily open to tampering, alteration or
substitution either by accident or otherwise. Thus, to remove any doubt or uncertainty
on the identity and integrity of the seized drug, evidence must definitely show that the
illegal drug presented in court is the same illegal drug actually recovered from the
accused-appellant; otherwise, the prosecution for possession under Republic Act No.
9165 fails.
The requirement for establishing the chain of custody fulfills the function of ensuring
that unnecessary doubts concerning the identity of the evidence are removed. 18 The
Prosecution does not comply with the requirement of proving the corpus delicti not only
when the dangerous drugs involved are missing but also when there are substantial
gaps in the chain of custody of the seized dangerous drugs that raise doubts on the
authenticity of the evidence presented in court.19chanrobleslaw
To ensure the chain of custody, Section 21 (1), Article II, of RA No. 9165 demands
that:
(1) The apprehending team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph the
same in the presence of the accused or the person/s from whom such items were
confiscated and/or seized, or his/her representative or counsel, a representative from
the media and the Department of Justice (DOJ), and any elected public official who
shall be required to sign the copies of the inventory and be given a copy thereof.
The Implementing Rules and Regulations (IRR) of RA No. 9165 complement the
statutory definition of the chain of custody thusly:
(a) The apprehending officer/team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph the
same in the presence of the accused or the person/s from whom such items were
confiscated and/or seized, or his/her representative or counsel, a representative from
the media and the Department of Justice (DOJ), and any elected public official who
shall be required to sign the copies of the inventory and be given a copy thereof:
Provided, that the physical inventory and photograph shall be conducted at the place
where the search warrant is served; or at the nearest police station or at the nearest
office of the apprehending officer/team, whichever is practicable, in case of warrantless
seizures; Provided, further, that non compliance with these requirements under
justifiable grounds, as long as the integrity and the evidentiary value of the seized
items are properly preserved by the apprehending officer/team, shall not render void
and invalid such seizures of and custody over said items;
The importance of the chain of custody cannot be understated. As we have indicated

in People v. Mendoza:20 chanrobleslaw
Based on the foregoing statutory rules, the manner and timing of the marking of the
seized drugs or related items are crucial in proving the chain of custody. Certainly, the
marking after seizure by the arresting officer, being the starting point in the custodial
link, should be made immediately upon the seizure, or, if that is not possible, as close
to the time and place of the seizure as practicable under the obtaining circumstances.
This stricture is essential because the succeeding handlers of the contraband would use
the markings as their reference to the seizure. The marking further serves to separate
the marked seized drugs from all other evidence from the time of seizure from the
accused until the drugs are disposed of upon the termination of the criminal
proceedings. The deliberate taking of these identifying steps is statutorily aimed at
obviating switching, "planting" or contamination of the evidence. Indeed, the
preservation of the chain of custody vis a-vis the contraband ensures the integrity of
the evidence incriminating the accused, and relates to the element of relevancy as one
of the requisites for the admissibility of the evidence.
Was the chain of custody preserved in this case?
It appears clear to us as a reviewing court that the chain of custody was not preserved
in the manner required by the aforementioned guidelines fixed by law. The arresting
officers committed serious lapses that put into grave doubt the integrity of the evidence
presented against the accused.
First of all, the confiscated items were not marked immediately after the seizure. In
that regard, PO1 Miro recalled that he was the one who had placed the markings JR-B,
JR-1 and JR-2 on the packs of shabu that were brought to the PNP Crime
Laboratory,21 and clarified on cross-examination that he had himself placed the
markings at the police station.22 Yet, his credibility suffered because of the
inconsistency of his recollection of this crucial part of the chain of custody with those of
poseur buyer PO2 Villahermosa and P/Chief Inspector Banzon, who declared that it was
SPO4 Jake Rojas who had placed the markings on the packs. 23 The inconsistency among
the witnesses of the State could not be dismissed as trivial or inconsequential in view of
the defining role of the initial marking of the confiscated items.
Secondly, the law specifically required that the marking must be witnessed by the
accused, but there was no credible showing by the State that the accused had actually
witnessed the process of marking. This meant that the confiscation of the shabu was
not properly insulated from doubt.
Thirdly, another substantial gap in the chain of custody concerned the absence of any
representative of the media or of the Department of Justice (DOJ), and of the elected
public official during the buy-bust operation and at the time of the confiscation of the
dangerous drugs from the accused in the area of operation. The Prosecution did not
attempt to explain why such presence of the media or DOJ representatives, and of the
elected public official had not been procured despite the buy-bust operation being
mounted in the afternoon of November 27, 2002 following two weeks of surveillance to
confirm the veracity of the report on the illegal trading in drugs by the accused. 24 The
objective of requiring their presence during the buy-bust operation and at the time of
the recovery or confiscation of the dangerous drugs from the accused in the area of
operation was to ensure against planting of evidence and frame up. It was clear that
ignoring such objective was not an option for the buy-bust team if its members
genuinely desired to protect the integrity of their operation. Their omission attached
suspicion to the incrimination of the accused. The trial and appellate courts should not
have tolerated the buy-bust team's lack of prudence in not complying with the
procedures outlined in Section 21(1), supra, in light of the sufficient time for them to
comply.
And, lastly, the arresting officers did not prepare any inventory of the confiscated
items, and did not take photographs of the items. Had there been an inventory
prepared or photographs taken, the Prosecution would have surely formally offered
them as evidence.25 But no such offer was made. As such, the omissions were another
cralawred
serious gap in the chain of custody.
Under the last paragraph of Section 21(a), Article II of the IRR of R.A. No. 9165, a
saving mechanism has been provided to ensure that not every case of non-compliance
with the procedures for the preservation of the chain of custody will irretrievably
prejudice the Prosecution's case against the accused. To warrant the application of this
saving mechanism, however, the Prosecution must recognize the lapse or lapses, and
justify or explain them.26 Such justification or explanation would be the basis for
applying the saving mechanism. Yet, the Prosecution did not concede such lapses, and
did not even tender any token justification or explanation for them. The failure to justify
or explain underscored the doubt and suspicion about the integrity of the evidence of
the corpus delicti.27 With the chain of custody having been compromised, the accused
deserves acquittal. In other words, his defenses of denial and frame up defenses of the
accused, the unexplained procedural lapses committed by the buy-bust team, on its
own, created a reasonable doubt about the guilt of accused given the uncertainty over
the identity and integrity of the seized shabu that the State presented as evidence of
his guilt.28 chanrobleslaw
3.
The presumption of regularity in the performance of duty
in favor of the arresting officers did not prevail over the presumption of
innocence in favor of the accused
The CA observed that the presumption of regularity in the performance of duty in favor
of the arresting officers was not overturned by the proof adduced by the Defense
clearly and convincingly showing improper motive on their part to falsely incriminate
the accused.
The accused charged with a violation of the Comprehensive Drugs Act of 2002 is always
presumed innocent of the crime charged against him. This presumption of his
innocence, which has been enshrined in Section 14, Article III (The Bill of Rights) of the
Constitution, ensures that: "In all criminal prosecutions, the accused shall be presumed
innocent until the contrary is proved." It underlies our system of criminal justice, and
far outweighs any other presumption, particularly one that is essentially a rule of
evidence. In People v. Mendoza,29 we have fittingly explained the superiority of the
presumption of innocence over the lesser presumption of regularity of performance of
official duty, as follows:
We have usually presumed the regularity of performance of their official duties in favor
of the members of buy-bust teams enforcing our laws against the illegal sale of
dangerous drugs. Such presumption is based on three fundamental reasons,
namely: first, innocence, and not wrong-doing, is to be presumed; second, an official
oath will not be violated; and, third, a republican form of government cannot survive
long unless a limit is placed upon controversies and certain trust and confidence
reposed in each governmental department or agent by every other such department or
agent, at least to the extent of such presumption. But the presumption is rebuttable by
affirmative evidence of irregularity or of any failure to perform a duty. Judicial reliance
on the presumption despite any hint of irregularity in the procedures undertaken by the
agents of the law will thus be fundamentally unsound because such hint is itself
affirmative proof of irregularity.
The presumption of regularity of performance of official duty stands only when no

reason exists in the records by which to doubt the regularity of the performance of
official duty. And even in that instance the presumption of regularity will not be
stronger than the presumption of innocence in favor of the accused. Otherwise, a mere
rule of evidence will defeat the constitutionally enshrined right to be presumed
innocent. Trial courts are instructed to apply this differentiation, and to always bear in
mind the following reminder issued in People v. Catalan: ChanRoblesVirtualawlibrary
x x x We remind the lower courts that the presumption of regularity in the performance
of duty could not prevail over the stronger presumption of innocence favoring the
accused. Otherwise, the constitutional guarantee of the accused being presumed
innocent would be held subordinate to a mere rule of evidence allocating the burden of
evidence. Where, like here, the proof adduced against the accused has not even
overcome the presumption of innocence, the presumption of regularity in the
performance of duty could not be a factor to adjudge the accused guilty of the crime
charged.
Moreover, the regularity of the performance of their duty could not be properly
presumed in favor of the policemen because the records were replete with indicia of
their serious lapses. As a rule, a presumed fact like the regularity of performance by a
police officer must be inferred only from an established basic fact, not plucked out from
thin air. To say it differently, it is the established basic fact that triggers the presumed
fact of regular performance. Where there is any hint of irregularity committed by the
police officers in arresting the accused and thereafter, several of which we have earlier
noted, there can be no presumption of regularity of performance in their favor. 30
In view of the many notable serious procedural lapses committed by the buy-bust
team, the benefit of the presumption of the regularity of the performance of duty by
the arresting officers is indubitably unwarranted.
WHEREFORE, the Court REVERSES and SETS ASIDE the decision promulgated on
June 13, 2011 by the Court of Appeals in CA-G.R. CEB CR-H.C. No. 00792
entitled People v. Jehar Reyes; ACQUITS accused-appellant JEHAR REYES of the
offense charged on the ground of reasonable doubt; and ORDERS his immediate
release from detention at the National Penitentiary, unless there are other lawful causes
warranting his continued detention.
The Court DIRECTS the Director of the Bureau of Corrections to fortwith implement
this decision, and to report his action hereon to this Court within ten (10) days from
receipt.
No pronouncement on costs of suit.
SO ORDERED.
Sereno, C.J, Leonardo-De Castro, Perlas-Bernabe, and Caguioa, JJ., concur.
We do not agree.
xxxx
x x x [I]t has been ruled time and again that non-compliance vith Sec. 21 of the IRR does not make the
items seized inadmissible. What is imperative is ''the preservation of the integrity and the evidential value of
the seized items as the same would be utilized in the determination of the guilt of innocence ofthe accused."
Given the Prosecution's evidence, We rule that the presumption of regularity in the performance of official
duties has not been overturned. The presumption remains because the Defense failed to present clear and
convincing evidence that the police of11cers did not properly perform their duty or that they were inspired
by an improper motive. In cases involving violations of Dangerous Drugs Act, credence should be given to
the narration of the incident by the prosecution witnesses especially when they are police officers who are
presumed to have performed their duties in a regular manner, unless there is evidence to the contrary.
On this point, We rule that although respondent policemen continue to be

citizens, as public respondents contend, they are not the "private citizens"
referred to in the laws cited above. Clearly, the term "private citizens" does not
ordinarily include men in uniform, such as the respondent PNP men. This is
particularly evident in the PNP law which uses the term "members of the PNP" as
well as "private citizens" to refer to different groups of persons and not
interchangeably. The "plain meaning rule" or verba legis in statutory construction
is applicable in this situation. When the words of a statute are clear, plain and
free from ambiguity, it must be given its literal meaning and applied without
attempted interpretation. The term "private citizen" in the PNP Law and PLEB
21
Rules is used in its common signification and was not meant to refer to the
members of the PNP, such as respondent policemen.
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Republic of the Philippines)
Province of Pampanga )
City of San Fernando ) s.s
COUNTER AFFIDAVIT
I, P03 Arnold Bautista Walican, a member of Philippine National Police and

presently assigned at the Apalit Municipal Police Station with postal address at Brgy
San Juan, Apalit, Pampanga, after having been sworn in accordance with law do hereby
depose and say:
1. I am being investigated by the PRO3, RIDMD for an administrative
complaint for alleged Grave Misconduct (Lost of Issued Firearm) under Rule 21, Sec.
2C para 3 sub para (n) of NAPOLCOM MC No. 2016-002 "deliberately or through
negligence, destroy, damage or lose government property entrusted to him for
official use".
2. That pursuant to the initial evaluation report on the complaint dated May 4,
2017 as approved by PSSUPT ROMEO M CARAMAT, JR. Acting Provincial Director of
Bulacan PPO, the allege offense committed by the undersigned pertains to Chapter
Three, Article 208 of the Revised Penal Code which provides, "Prosecution of Offenses;
negligence and tolerance - The penalty of prison correctional in its minimum period and
suspension shall be imposed upon any public officer or officer of the law, who, in
dereliction of the duties of his office, shall maliciously refrain from instituting prosecution
for the punishment of violators of the law, or shall tolerate the commission of offenses.
Pursuant to Article 27 of Act No. 3815, the duration of the penalties of prison
correctional, suspension and destierro shall be from six (6) months and one (1) day to
six (6) years, except when the suspension imposed as an accessory penalty, in which
case, its duration shall be of the principal penalty.
3. That I vehemently deny the aforementioned allegations as the instant charge

is not only erroneous, but also is false and has no factual and legal basis.
4. That the actual facts surrounding the instant case are as follows:
a. On December 17, 2018 at around 8:45 in the evening an incident for illegal
discharge of firearms was reported to the Hagonoy Municipal Police Station. Said report
was responded by ____________________ and ____________ who arrested and
brought the suspect to the station;
b. As the duty investigator, the arrested person was brought to me for the
conduct of investigation. That since it is a Saturday, I informed the complainant if he
wants to just return the following Monday since there was no office to file the case at
that time. The complainant agrees and told me that he will just return the following
Monday to sign his affidavit;
c. That Monday, I waited the whole morning for the said complainant so that I can
continue with the investigation and finish his affidavit which is necessary in the filing of
the said case as I have no personal knowledge of what happened on said incident. The
said affidavit will be the basis for the filing of the instant case against the prisoner as he
was the only witness in said incident as the arresting officers did not also witnessed the
alleged illegal discharge of firearm committed by the suspect;
d. I even tried reminding the complainant of the said affidavit by calling him on his
given cellular phone number that Monday morning, December 19, 2018 since the
prescribed period of detention of the suspect is already expiring. However, I cannot
connect to the number provided to me by the complainant. Screenshots of the call logs
is hereto attached as Annex "1";
e. Considering that the period of detention for the suspect is about to lapse, and
complainant has yet to arrive at the police station, I have no recourse but release the
suspect otherwise I can be charged for arbitrary detention under Article 124 of the
Revised Penal Code;
f. At around 3 PM on said day, the complainant belatedly arrived and asked me

what happened and why the suspect was released. I told him that I was waiting for him
so that I could finish his affidavit and all documents related to the filing of the case as it
will all depend on his statement, but he was nowhere that morning;
g. I however advised him that the case is not lost as he can still file the same but
he has to file the same first before the barangay captain as it is a requisite for that
particular case. As a matter of fact, he adhered to my advice and file the same in their
barangay as evidenced by a Certificate to File Action issued by the barangay that is
attached to his Complaint Sheet;
h. That I never heard from him again after that instance which I assume that he
has already settled with the suspect considering that they are in laws, until this instant
charge.
5. That due to aforementioned facts, I vehemently and categorically deny

that I have intentionally and maliciously committed the aforementioned allegation that is
being levelled against me.
6. The elements of dereliction of duty in the prosecution of offenses pursuant

to Article 208 of the Revised Penal Code are as follows:
a) Offender is a public officer or officer of the law who has a duty to cause the
prosecution of, or to prosecute offenses;
b) There is a dereliction of the duties of his office, that is, knowing the
commission of the crime, he does not cause the prosecution of the criminal, or knowing
that a crime is about to be committed, he tolerates the commission;
c) Offender acts with malice and deliberate intent to favour the violator of law.
7. Based on the following aforementioned facts and also that of the

complainant's narration of facts, the aforementioned elements to constitute the violation
of law for which I am charged is not all present. Hence, no crime or violation of law that
can be levelled against me.
8. As a matter of fact, the probable and only element present in the instance
case is that I am a public officer, the other two elements is not present and inexistent.
9. Clearly, there is no dereliction of the duties of my office. I cannot be said to

have not cause the prosecution of the criminal case nor tolerates the commission of the
case. As a matter of fact, the suspect was arrested and detained at the Hagonoy
Municipal Police Station. Moreover, I initially conducted the investigation of the incident
that caused the arrest of the suspect. I even consulted the complainant if he wants to
just continue the investigation and taking of the affidavit the following Monday as it is
Saturday and the complainant agrees.
10. I even tried to call him twice on his cellular phone but I can't seem to reach
or connect with him. This can be considered as due diligence on my part as I was never
remised on my duties as investigator.
11. That considering that there is a prescribed period wherein police officers
can validly detained a suspect for a certain crime is about to lapse at tha time. I cannot
detained the suspect in perpetuity to wait for the complainant to arrive and sign his
affidavit. Otherwise, of I continue to detain the suspect and still wait fot the complainant.
I can be held liable for violation of Article 124 of the Revised Penal Code for Arbitrary
Detention.
12. Clearly, the aforementioned actions that I have undertaken cannot

constitute as action with malice and deliberate intent to favour the violator of law or the
suspect. The act of releasing the suspect but rather is the legal thing to do. Otherwise,
to prolong the detention of said suspect and to wait for the uncertain return of the
complainant will be illegal and oppressive. I am just doing what is legal and just
considering the circumstances.
13. As police officers, we are trained to follow the law, rules and regulations.
We cannot depend on the wimps and caprices of any party whether a complainant or an
accused. Police officers are often placed in a position where he/she has to act that may
not be favourable to a particular party. But police officers have to do it, and must do it in
accordance with law, just like in the instant case. The undersigned police officer is only
doing his job in accordance with the law, and as such, he cannot be held to answer
based only on the premise that a party is not happy with what happened, despite of his
own diligence.
14. Considering the aforementioned, there is neither legal nor factual basis to
hold such administrative complaint filed against me. Thus, the said complaint should be
dismissed outright and consider the same as dropped and closed.
15. Moreover, that in the undersigned respondent's almost nine years of

service to the organization where I have never been convicted of any administrative
case shows that the herein respondent cannot be considered as a liability of the
organization. As a matter of fact, the undersigned respondents were able to receive
various commendations for his meritorious contributions to various police operations.
Furthermore, said allegations are only committed by the undersigned respondent in
good faith as I have done said actions pursuant to the law rules and regulations. Copies
of my PNP PDS and service record are also hereto attached as Annex "2" and "3".
PRAYER
WHEREFORE, in view of the foregoing, it is respectfully prayed that the instant

Administrative case be DROPPED AND CLOSED for lack of factual and legal basis.
The respondent further prays for such other reliefs just and equitable under the
premises.
Done this _____ day of _____________ 2019 at City of San Fernando,

Pampanga.
P03 ________________
Respondent-Affiant
SUBSCRIBED AND SWORN to before me this __________ day of ___________

2019, P03 ____________exhibiting to me his PNP ID with ID No. ______________
issued on January _______, 2019 at Quezon City.
WITNESS MY HAND AND SEAL in the date and place first above written.
Doc. No. ____________

Page No. ____________
Book No. ____________
Series of _____________
EN BANC
[G.R. No. 143403. January 22, 2003]
FILONILA O. CRUZ, petitioner, vs. Hon. CELSO D. GANGAN, Dir.

MARCELINO HANOPOL, Auditor GLENDA MANLAPAZ, and the
COMMISSION ON AUDIT, respondents.
DECISION
PANGANIBAN, J.:
While we commend the Commission on Audit for its diligence in

safeguarding State properties, we nonetheless rule that a government
employee who has not been proven to be culpable or negligent should not be
held accountable for the loss of a cellular phone stolen from her while she was
riding the Light Railway Transit (LRT). On the other hand, the dogged
persistence of petitioner in fighting for her rights, honor, respect and dignity
has not been lost on this Court. She has been true to her calling as an
educator and a role model for our young people.
The Case
For review on certiorari under Rule 64 is Decision No. 2000-104 dated [1]
March 28, 2000, issued by the Commission on Audit (COA), requiring Dr.
Filonila O. Cruz to pay the book value of a lost government-issued Nokia 909
analog cellular phone. The decretal portion of the Decision reads as follows:
Premises considered, and conformably to the adverse recommendations of the

Director, NGAO II and the Auditor, TESDA-NCR in the letter and 2 ndIndorsement
dated July 13, 1999 and February 26, 1999, respectively, it is regretted that the instant
request for relief is DENIED for want of merit. This being so, the herein petitioner
should be required to pay the book value of the lost government-issued cellular phone.
[2]
The Facts
On Friday afternoon of January 15, 1999, petitioner went to the Regional

Office of the Technological Education and Skills Development Authority
(TESDA) in Taguig, Metro Manila for consultation with the regional director.
After the meeting, petitioner went back to her official station in Caloocan City,
[3]
where she was the then Camanava district director of the TESDA, by boarding
the Light Railway Transit (LRT) from Sen. Gil Puyat Avenue to
Monumento. On board the LRT, her handbag was slashed and its
contents stolen by an unidentified person.Among the items taken from her
were her wallet and the government-issued cellular phone, which is the
subject of the instant case. That same day, she reported the incident to police
authorities who immediately conducted an investigation. However, all efforts to
locate the thief and to recover the phone proved futile.
Three days after, on January 18, 1999, petitioner reported the theft to the
regional director of TESDA-NCR. She did so through a Memorandum, in
which she requested relief from accountability of the subject property. In a
1st Indorsement dated January 19, 1999, the regional director, in turn,
indorsed the request to the resident auditor.
Under a 2nd Indorsement dated February 26, 1999, the resident
auditor denied the request of petitioner on the ground that the latter lacked
[4]
the diligence required in the custody of government properties. Thus,

petitioner was ordered to pay the purchase value of the cell phone (P3,988)
and that of its case (P250), a total of P4,238. The auditors action was
sustained by the director of the National Government Audit Office II (NGAO
II). The matter was then elevated to the Commission on Audit.
Ruling of the Commission on Audit
On appeal, the COA found no sufficient justification to grant the request for
relief from accountability. It explained as follows:
x x x While it may be true that the loss of the cellular phone in question was due to
robbery (bag slashing), this however, cannot be made as the basis in granting the
herein request for relief from accountability since the accountable officer, Dr. Cruz,
failed to exercise that degree of diligence required under the circumstances to
prevent/avoid the loss. When Dr. Cruz opted to take the LRT which undeniably, was
almost always packed and overcrowded and considering further the day and time she
boarded said train which was at about 2:00 to 2:30 P.M. of Friday, she exposed herself
to the danger and the possibility of losing things such as the subject cellular phone to
pickpockets. As an accountable officer, she was under obligation to exercise proper
degree of care and diligence in safeguarding the property, taking into account what a
reasonable and prudent man would have done under the circumstances. Dr. Cruz could
have reasonably foreseen the danger that would befall her and took precautions
against its mischievous result. Therefore, having been remiss in her obligation in the
keeping or use of the subject government issued cellular phone, she has to answer for
its loss as required under Section 105 of PD 1445. Additionally, to be exempt from
liability because of fortuitous event as invoked by petitioner Dr. Cruz has no bearing
to the case at bar considering that Article 1174 of the New Civil Code which supports
said contention applies only if the actor is free from any negligence or misconduct by
which the loss/damage may have been occasioned. Further, in Nakpil vs. CA, 144
SCRA 596, one who creates a dangerous condition cannot escape liability although an
act of God may have intervened. Thus, there being a positive showing of negligence
on the part of the petitioner in the keeping of the subject cellular phone, then, such
negligence militates against the grant of herein request for relief. [5]
Hence, this Petition. [6]
Issues
In her Memorandum, petitioner faults the COA with the following alleged
errors:
I.
The Commission Proper committed grave abuse of discretion amounting to excess of

jurisdiction in finding that petitioner failed to exercise that degree of diligence
required to prevent the loss of the government-issued cellular phone when she opted
to take the light railway transit (LRT) in going to her official station in CAMANAVA
District, Caloocan City Hall, Caloocan City[; and]
II.
The Commission Proper committed grave abuse of discretion when it applied the case
of Nakpil vs. CA, 144 SCRA 596 and disregarded Article 1174 of the New Civil Code
in denying petitioners request for relief from accountability[.][7]
In the main, the issues in this case are: (1) whether petitioner was
negligent in the care of the government-issued cellular phone, and (2) whether
she should be held accountable for its loss.
We note that in its Manifestation and Motion dated October 24, 2000,
reiterated in a similar pleading dated March 28, 2001, the Office of the
Solicitor General (OSG) sided with petitioner and prayed for the granting of
the Petition. Hence, the COA was herein represented by its general counsel,
Atty. Santos M. Alquisalas.
The Courts Ruling
The Petition is meritorious.
First Issue:
Required Degree of Diligence
The crucial question to ask is whether petitioner should be deemed
negligent when, on that fateful afternoon, she opted to board the LRT where
the cellular phone was stolen.
We answer in the negative. Riding the LRT cannot per se be denounced
as a negligent act; more so under the circumstances in this case, in which
petitioners mode of transit was influenced by time and money considerations.
Petitioner boarded the LRT to be able to arrive in Caloocan in time for her
3:00 p.m. meeting. Any prudent or rational person under similar
circumstances can reasonably be expected to do the same. Possession of a
cellular phone would not and should not hinder one from boarding an LRT
coach as petitioner did. After all, whether she took a bus or a jeepney, the risk
of theft would have also been present.Because of her relatively low position
and pay, she was not expected to have her own vehicle or to ride a
taxicab. Neither had the government granted her the use of any vehicle.
Negligence is the omission to do something which a reasonable man, guided upon

those considerations which ordinarily regulate the conduct of human affairs, would
do, or the doing of something which a prudent man and reasonable man would not do.
[8]
Negligence is want of care required by the circumstances. [9]
The diligence with which the law requires the individual at all times to govern his
conduct varies with the nature of the situation in which he is placed, and the
importance of the act which he is to perform. (Emphasis supplied)
[10]
The Rules provide that property for official use and purpose shall be
[11]
utilized with the diligence of a good father of a family. Extra-ordinary measures

are not called for in taking care of a cellular phone while in transit. Placing it in
a bag away from covetous eyes and holding on to that bag, as done by
petitioner, is ordinarily sufficient care of a cellular phone while travelling on
board the LRT. The records do not show any specific act of negligence on her
part. It is a settled rule that negligence cannot be presumed; it has to be
[12]
proven. In the absence of any shred of evidence thereof, respondents gravely

abused their discretion in finding petitioner negligent.
Granting that the presence or the absence of negligence is a factual
matter, the consistent ruling of this Court is that findings of fact of an
administrative agency must be respected, so long as they are supported by
substantial evidence. But lacking support, the factual finding of the COA on
[13]
the existence of negligence cannot stand on its own and is therefore not
binding on the Court.
While we commend the Commission on Audit for its diligence in
safeguarding State properties, we nonetheless hold that a government
employee who has not been proven to be culpable or negligent should not be
held accountable for the loss of a cellular phone, which was stolen from her
while she was riding on the LRT.
Second Issue:
Accountability
The assailed COA Decision directly attributed the loss of the cellular
phone to a robbery (bag slashing). However, it denies the request of petitioner
for relief from accountability, because it found her to be negligent. Earlier, we
have already ruled that the finding of negligence had no factual or legal basis
and was therefore invalid. What now remains to be resolved is whether
petitioner observed the proper procedure for notifying the government of the
loss.
Within thirty days of the loss, petitioner applied for relief from
[14]
accountability. We hold that such application be deemed as the notification of

the loss of the subject cellular phone. She has also done her part in proving
that the loss was due to theft or robbery. The resident auditor concerned and
[15]
the COA itself have accepted that the robbery or theft had actually taken
place. Necessarily, in the absence of evidence showing negligence on her
part, credit for the loss of the cellular phone is proper under the law. It also
[16]
stands to reason that P4,238 should now be refunded to her. That was the
amount she had to pay on June 3, 1999, upon her retirement from
government service at age 65.
Her dogged persistence in pursuing this appeal has not been lost on this
Court. We agree that, in fighting for her rights, she must have spent more than
the value of the lost cellular phone. Hence, we can only applaud her for being
true to her calling as an educator and a role model for our young
people. Honor, respect and dignity are the values she has pursued. May her
tribe increase!
WHEREFORE, the Petition is GRANTED. The assailed Decision of the
Commission on Audit is REVERSED and SET ASIDE. The request of
Petitioner Filonila O. Cruz for relief from accountability for the lost Nokia 909
analog cellular phone is GRANTED, and the amount of P4,238 paid under
Official Receipt No. 6606743 is ordered to be REFUNDED to her upon finality
of this Decision. No costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Quisumbing, Ynares-Santiago, Sandoval-
Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo,
Sr., and Azcuna, JJ., concur.
Bellosillo, J., on leave.
Mendoza, J., in the result.
G.R. No. 200628, January 13, 2015 - MARIA THERESA G. GUTIERREZ, Petitioner, v. COMMISSION ON
AUDIT AND AUDITOR NARCISA DJ JOAQUIN, Respondents.
EN BANC
G.R. No. 200628, January 13, 2015
MARIA THERESA G. GUTIERREZ, Petitioner, v. COMMISSION ON AUDIT AND AUDITOR NARCISA DJ

JOAQUIN, Respondents.
DECISION
LEONEN, J.:
A cashier who is found to have been negligent in keeping the funds in his or her custody cannot be relieved
from his or her accountability for amounts lost through robbery.
This is a Petition for Certiorari under Rule 65 of the Rules of Court assailing the June 5, 2008 withholding
order and the Commission on Audit's January 31, 2012 decision holding Maria Theresa G. Gutierrez
(Gutierrez) liable for the P10,105,687.25 that was lost through robbery.
Gutierrez is a Cash Collecting Officer, with the designation of Cashier III at National Food Authority-National
Capital Region, National District Office (NFA-NCR, NDO).1 On May 30, 2008, she had collections amounting
to F9,390,834.00, covered by Official Receipt Nos. 0420975 to 0421246. 2 On that day, she placed the
collections in a wooden cabinet.3
The next day,.Gutierrez's collections amounted to P1,505,625.00. 4 Of that amount, P714,852.75 and an
undeposited amount of P0.50 from March 2008 were placed in a wooden cabinet. 5 The rest was placed in the
safety vault.6
The total undeposited collection as of March 31, 2008 was P10,896,459.50. Of that amount, P10,105,687.25
was placed in the "pearless" boxes7 in a wooden cabinet and P790,772.25 was placed in the safety vault. 8
On June 1, 2008, at about 1:35 a.m., armed men in military uniforms with Philippine National Police-
Security Agencies and Guards Supervision Division (PNP-SAGSD) identifications entered the NFA-NCR,
NDO.9 The armed men disarmed NFA-NCR, NDO's security guards and took Gutierrez's undeposited
collections.10 Lockheed Detective and Watchman Agency, Inc. was NFA-NCR, NDO's contracted security
agency.11
The security guards on duty executed their respective affidavits. Based on their affidavits, armed men
entered the NFA-NCR, NDO compound after they had been disarmed, threatened, and tied up. 12 The security
guards immediately reported the incident to the Valenzuela Police Station, 13 where an investigation
report14 was issued consistent with the security guards' narrations in their affidavits. 15
On June 3, 2008, the Commission on Audit, National Food Authority-NCR, North District Office, Malanday,
Valenzuela City, through State Auditor Narcisa DJ Joaquin (State Auditor Joaquin), issued a demand letter to
Gutierrez.16 Gutierrez was informed that she must immediately produce the missing funds amounting to
P10,105,686.75.17 She was also ordered to submit within 72 hours a written explanation why such shortage
occurred.18
On June 5, 2008, the Commission on Audit, through State Auditor Joaquin, issued a withholding order,
addressed to Roberto S. Musngi (Musngi), Manager of National Food Authority, North District Office. 19Musngi
was informed that upon examination of Gutierrez's account on June 1, 2008, it was established that there
was a P10,105,686.75 shortage in Gutierrez's accountabilities.20 Pursuant to Section 37 of Presidential
Decree No. 1445, Musngi was directed to withhold Gutierrez's salaries and other emoluments so these could
be applied to the satisfaction of the shortage.21
In response to the June 3, 2008 demand letter of the Commission on Audit, Gutierrez executed an affidavit
dated June 6, 2008 wherein she narrated that she had been serving as National Food Authority's Cash
Collecting Officer since 1985.22 Her office was located at the far end of the National Food Authority
building.23 That was where the "pearless" boxes and the cabinet where she kept her collections could be
found.24 Quoted below is her explanation for using "pearless" boxes to keep her collections: chanroblesvirtuallawlibrary
6. That because of the volume of money I accept every day, which averages from 4 to 6 million pesos every
day depending on the seasons, most of my time inside the office is spent to counting, bundling by different
denominations the money. To emphasize the point, the money that I am accepting from remittances and
payments are of different denominations, from twenty five centavo (Php0.25) coins to one thousand peso
(Php1,000.00) bills. The coins alone would amount in the average of Twelve thousand pesos
(Php12,000.00). I could literally say that from the time I timed in the office at about 6:30 a.m. up to the
time I timed out at about 6:30 p.m., my only rest from my work is to [be] going to the ladies room and the
break during lunch time.
....
8. That when the rice crises came up on April 2008, volume of work including the amount of money that
comes into my office almost doubled. That because of the heavy operations in our office I had an average
collection starting April 2008 of 6 to 9 Million Pesos every day of every denomination, with coins averaging
from 12 to 16 thousand pesos that needs to be counted, receipted, bundled, balanced, reported and kept.
9. That it is almost automatic that when I enter my office what comes to my mind is to count the money and
bundle them by the hundreds and prepare receipts for the payments and remittances until the time to leave
at about 6:30 p.m. I would also cause the deposit of the money collected the day before to Land Bank. But
there were even times that because of the volume of the money, bank representatives could not sort out all
the smaller bills (P20s and P50s) being picked up from our office as the Armor van should be in the bank at
3:00 p.m. Thus, there would be arrangements in the bank that the counting would continue inside their
office, which oftentimes lasts until late night.
10. That since April 2008 or the start of the heavy operations, I have been putting some of the money in the
"pearless" box, because of the volume, which I have to carry and keep safe at the cabinet inside. I have six
(6) pearless boxes in the office.
....
13. That since May 30, 2008 is a Friday, banks are closed the following day and the money collected on said
date would have remained in my office until the next banking day.
....
18. It was very unfortunate that the money accepted on May 30, 2008 and the collection in the night before
the robbery were left in the pearless box inside the cabinet and not inside the vault. But with the volume of
money, the vault has not enough space to accommodate all of it.
19. And with the amount of work that I am doing every day from 6:30 in the morning up to 6:30 p.m., more
or less, where my only rest is literally going to the ladies room, and with the safe location of my office, it did
not come to my mind that this incident would come.
20. That I have nothing to do with what happened in the incident of June 1, 2008 at 1:30 in the morning
and I am not in control now to produce those missing funds taken by the robbers. 25 cralawlawlibrary
On June 10, 2008, Gutierrez requested relief from money accountability for the loss of the collections. 26The
letter was addressed to State Auditor Joaquin.
In the letter dated June 26, 2008 addressed to State Auditor Joaquin, Gutierrez appealed the withholding
order issued on June 5, 2008.27 She prayed that her salaries and emoluments be given to her while the
robbery incident was still under investigation.28 She was a widow who had three (3) dependents and an 85-
year-old mother residing with her in need of medical attention. 29 She had no other source of income to
support herself, her dependents, and her mother. 30
On June 26, 2008, State Auditor Joaquin denied Gutierrez's appeal of the withholding order. 31 State Auditor
Joaquin informed Gutierrez that there was already a prima facie case for malversation against her under
Article 217 of the Revised Penal Code.32
On July 11, 2008, Gutierrez filed a notice of appeal of State Auditor Joaquin's withholding order dated June
5, 2008.33
On July 21, 2008, Atty. Saturnino R. Rola, Jr., Director of the National Food Authority, Enforcement,
Investigation and Prosecution Department, submitted a memorandum addressed to the Administrator,
Jessup P. Navarro.34 He found that the security agency was solidarity liable with security guard Romeo Casta
for the amount lost.35 He also found that Gutierrez, by keeping her collections in unsecured "pearless" boxes
and not in a vault, was grossly negligent in safekeeping her collections. 36 He recommended that Gutierrez be
administratively charged with dishonesty, gross neglect of duty, conduct prejudicial to the best interest of
the service, and violation of reasonable office rules and regulations without prejudice to the filing of
appropriate criminal charges.37 He also recommended the restitution of the amount lost from Lockheed
Detective and Watchman Agency, Inc. Further, he recommended the ban of security guard Romeo Casta
from deployment in any National Food Authority installations. 38
Similar incidents of robbery at different National Food Authority offices involving Lockheed Detective and
Watchman Agency, Inc. were reported between 2006 and 2008. 39
On September 11, 2008, Commission on Audit Director IV Tito S. Nabua (Director Nabua) issued a decision
denying Gutierrez's appeal40 and expressing his agreement with the issuance of the withholding order. 41 The
robbery incident was acknowledged in the decision.42 However, Gutierrez's alleged act of negligence in the
performance of her duties could not be set aside.43 Her failure to follow safekeeping procedures showed lack
of due care on her part.44 Aside from Article 217 of the Revised Penal Code, the liabilities of an accountable
officer are found in Section 105 of Presidential Decree No. 1445. 45
Gutierrez filed a motion for reconsideration of the September 11, 2008 decision of Director Nabua on the
ground that he did not give her a chance to file a memorandum of appeal before submission of the case for
resolution.46 According to Gutierrez, this was a violation of the rules and of her right to due process. 47She
also cited reversible error in upholding State Auditor Joaquin's order despite lack of factual and legal bases
as ground for her motion.48
On January 31, 2012, the Commission on Audit denied her request for relief from money accountability. 49Its
ruling is reproduced as follows: chanroblesvirtuallawlibrary
WHEREFORE, premises considered, this Commission DENIES the herein request for relief from money
accountability, there being positive showing of fault or negligence on the part of Ms. Maria Theresa G.
Gutierrez in the safekeeping and custody of subject government funds.
Accordingly, Ms. Gutierrez shall be liable to pay to1 the NFA the missing amount of P10,105,687.25. This is
without prejudice to the right of the NFA-NCR, NDO to proceed against Lockheed Detective and Watchman
Agency, Inc. for the indemnification of the loss as security services provider to the NFA-NCR, NDO,
Valenzuela City.50
cralawlawlibrary
The Commission on Audit found that Gutierrez was negligent in safekeeping her collections. 51 Placement of
collections in a "pearless" box instead of in the safety vault, especially given the volume of collections,
constituted gross negligence on her part.52 Her 20-year service aggravated her negligence.53 It should have
made her more "security-conscious."54
The Commission on Audit also found that the security guards' failure to secure National Food Authority's
premises was a violation of the contract between National Food Authority and Lockheed Detective and
Watchman Agency, Inc.55
We decide whether Gutierrez's due process rights were violated when the Commission on Audit decided her
appeal without requiring her to file an appeal memorandum. We also decide whether Gutierrez is liable for
the amounts lost through a robbery.
Petitioner emphasizes that she was first assisted by counsel only when she filed a notice of appeal.
Respondent auditor had already issued the withholding order dated June 5, 2008 and .letter dated June 26,
2008 before petitioner was assisted by counsel.
Petitioner argues that her right to due process was violated when a decision was rendered against her
without giving her a chance to file an appeal memorandum in accordance with Section 5 of Rule V of the
Revised Rules of Procedure of the Commission on Audit. The appeal memorandum was her chance to raise
issues against respondent auditor's orders to prove her case and to submit evidence to support her
defense.56
Petitioner's right to due process was further violated when her motion for reconsideration was resolved by
the Commission on Audit instead of by Director Nabua. This prevented her from filing a petition for review of
Director Nabua's decision before the Commission on Audit.57
Petitioner cites Article IX(A), Section 7 of the Constitution to support her argument that she has a right to
present her side in a memorandum.58 It provides: chanroblesvirtuallawlibrary
Section 7. Each Commission shall decide by a majority vote of all its Members, any case or matter brought
before it within sixty days from the date of its submission for decision or resolution. A case or matter is
deemed submitted for decision or resolution upon the filing of the last pleading, brief, or
memorandum required by the rules of the Commission or by the Commission itself. Unless
otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be
brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy
thereof. (Emphasis supplied)
Petitioner argues that aside from the right to be heard, administrative due process also requires the right to
present evidence and for such evidence to be considered by the deciding tribunal. 59
Lastly, petitioner points out that the cause of the shortage was the robbery incident, which was a result of
the negligence of the security guards and not her negligence. 60 The vault that was assigned to her did not
have enough space to accommodate her collections.61
On the other hand, respondents argue that petitioner was not deprived of due process when she was not
given the opportunity to file an appeal memorandum. Her affidavit was a sufficient platform to raise her
defenses.62 Moreover, the presence of a counsel is not required in administrative proceedings. 63
Respondents also argue that petitioner cannot ask the Director or the Auditor to allow her to file an appeal
memorandum since it is the Commission on Audit that has the exclusive jurisdiction over requests for relief
from accountability in excess of P500,000.00.64 This, according to respondent, is based on Commission on
Audit Resolution No. 93-605 dated August 3, 1993.65
Finally, respondents argue that the circumstances show that petitioner fell short of the demands of her
position as cashier.66 What she could have done was to request additional vaults if the vaults in her
possession were not enough to accommodate all her collections. 67
We rule for respondents. chanRoblesvirtualLawlibrary
Petitioner's due process rights were not violated
Petitioner argues that she was assisted by counsel only after a withholding order had already been issued.
She also argued that the Commission on Audit Director's issuance of a decision on her appeal without
requiring her to file an appeal memorandum was a violation of her due process rights.
Petitioner's arguments are not tenable.
The right to counsel under Section 12(1) of Article III of the Constitution applies in criminal proceedings, but
not in administrative proceedings. It is a right given to persons accused of an offense during criminal
investigation.68 Any proceeding conducted by an administrative body is not part of the criminal investigation
or prosecution.69
Thus, this court said in Remolona v. Civil Service Commission:70 ChanRoblesVirtualawlibrary
While investigations conducted by an administrative body may at times be akin to a criminal proceeding, the
fact remains that under existing laws, a party in an administrative inquiry may or may not be assisted by
counsel, irrespective of the nature of the charges and of the respondent's capacity to represent himself, and
no duty rests on such body to furnish the person being investigated with counsel. In an administrative
proceeding, a respondent has the option of engaging the services of counsel or not. This is clear from the
provisions of Section 32, Article VII of Republic Act No. 2260 (otherwise known as the Civil Service Act) and
Section 39, paragraph 2, Rule XIV (on discipline) of the Omnibus Rules Implementing Book V of Executive
Order No. 292 (otherwise known as the Administrative Code of 1987). Thus, the right to counsel is not
always imperative in administrative investigations because such inquiries are conducted merely to determine
whether there are facts that merit disciplinary measure against erring public officers and employees, with
the purpose of maintaining the dignity of government service. As such, the hearing conducted by the
investigating authority is not part of a criminal prosecution.71
cralawlawlibrary
While the purpose of criminal proceedings is to determine if a person suspected of committing an offense
has indeed committed an offense, the purpose of an administrative proceeding is to determine if a person in
public office has violated the trust reposed in him or her by the public. In a criminal proceeding, if a person
is found guilty of an offense, the corresponding punishment is imposed primarily to protect the public from
being exposed to and correct his or her deviant behavior. In an administrative proceeding, if a person is
found administratively liable, the corresponding penalty is imposed primarily to preserve public trust and
protect the integrity of public service.72
Petitioner is not being accused of or investigated for a crime. The Commission on Audit's withholding order
and its denial of petitioner's request for relief from shortage were issued after it had made a finding that the
money entrusted to petitioner was lost. A finding of criminal liability was not the reason for the Commission
on Audit's issuances. The Commission on Audit has no jurisdiction to investigate a crime or to make a
finding of criminal liability. Any proceeding conducted prior to these issuances was for the purpose of
determining if petitioner's salaries should be withheld or if petitioner should be relieved from her liability as
a cashier.
Petitioner argues that Rule V, Section 5 of the Revised Rules of Procedure of the Commission on
Audit73requires that she be given an opportunity to file an appeal memorandum before the case is submitted
for decision. Section 5 is cited as follows:
chanroblesvirtuallawlibrary
Section 5. APPEAL MEMORANDUM AND REPLY - Upon receipt of the records of the case, the Director shall
issue an Order requiring the appellant to file an appeal memorandum within twenty (20) days from receipt
of the order. The appellant shall serve a copy of his appeal memorandum to the Auditor or appellee who
may reply thereto within the same period of time. With the filing of the appeal memorandum and reply or
lapse of the period within which to file them, the appeal shall be deemed submitted for decision.
Petitioner also argues that her due process rights were violated when the Commission on Audit decided her
motion for reconsideration of the Commission on Audit Director's decision dated September 11, 2008, and
denied her request for relief from accountability without her filing a memorandum or a petition for review.
She cites Article IX(A), Section 7 of the Constitution: chanroblesvirtuallawlibrary
Section 7. Each Commission shall decide by a majority vote of all its Members, any case or matter brought
before it within sixty days from the date of its submission for decision or resolution. A case or matter is
deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum
required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this
Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme
Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. (Emphasis
supplied)
Petitioner's due process rights were not violated when the Commission on Audit Director had failed to
require her to submit an appeal memorandum before he decided her appeal of the State Auditor's issuance
of a withholding order. There was also no violation of due process rights when the Commission on Audit
issued its January 31, 2012 decision denying her request for relief from accountability, without a petition for
review of the Commission on Audit Director's decision. The right to appeal is not part of due
process.74 Neither is it a natural right.75
Moreover, petitioner's relief from accountability may be decided by the Commission on Audit at the first
instance. Based on Commission on Audit Resolution No. 93-605, 76 only the Commission on Audit may
approve requests for relief from accountabilities amounting to more than P500,000.00. Thus: chanroblesvirtuallawlibrary
Now, therefore, pursuant to Article IX-D, Section 2(2) of the Constitution, Section 73 of PD 1445 and in
conformity with Section 378 of the Local Government Code, the Commission Proper hereby resolves, as it
does hereby resolve, to authorize the following COA Officials to act on requests for relief from property
and/or money accountability in the amounts indicated hereunder, except in cases of questions of law,
without prejudice to the usual appeal that may be taken therefrom to the Commission Proper, pursuant to
Section 48 of PD 1445.
Total Amount of Money or Cost of

Approving COA Official
Property Involved
Corporate and National Unit Auditor
not exceeding P5 0,000
Provincial and City Auditor
Director/Officer-in-Charge of Central
in excess of P50,000 up to P100,000
and Regional Offices
Assistant Commissioner in excess of P100,000 up to P200,000
COA Chairman in excess of P200,000 up to P500,000
Commission Proper above P500,000
The lost accountability involved in this case amounts to 10,105,687.75.
In any case, we determine if petitioner's due process rights were violated in the course of the proceedings
before the Commission on Audit.
This court in Ang Tibay v. Court of Industrial Relations77 ruled that administrative due process requires only
the following:
chanroblesvirtuallawlibrary
(a) The party should be allowed to present his or her own case and submit
supporting evidence;
(b) The deciding tribunal must consider the party's evidence;
(c) There is evidence to support the tribunal's decision;
(d) The evidence supporting the tribunal's decision must be substantial or
such "relevant evidence as a reasonable mind might accept as adequate
to support a conclusion";78
(e) The tribunal's decision was based on the evidence presented or the
records of the case disclosed to the parties;
(f) The tribunal's decision must be based on the judges' independent
consideration of the facts and law governing the case; and
(g) The tribunal's decision must be rendered such that the issues of the case
and the reasons for the decisions are known to the parties. 79
In sum, due process in administrative proceedings does not necessarily require a trial type of hearing.
Neither does it require an exchange of pleadings between or among the parties. Due process is satisfied if
the party who is properly notified of allegations against him or her is given an opportunity to defend himself
or herself against those allegations, and such defense was considered by the tribunal in arriving at its own
independent conclusions. This court explained in Ledesma v. Court of Appeals:80 ChanRoblesVirtualawlibrary
Due process is satisfied when a person is notified of the charge against him and given an opportunity to
explain or defend himself. In administrative proceedings, the filing of charges and giving reasonable
opportunity for the person so charged to answer the accusations against him constitute the minimum
requirements of due process. The essence of due process is simply to be heard, or as applied to
administrative proceedings, an opportunity to explain one's side, or an opportunity to seek a reconsideration
of the action or ruling complained of.
....
Administrative due process cannot be fully equated with due process in its strict judicial sense for it is
enough that the party is given the chance to be heard before the case against him is decided. 81 cralawlawlibrary
Petitioner's arguments and the issues she raised are sufficiently expressed in her affidavit submitted to the
Commission on Audit, her motion for reconsideration of the Commission on Audit Director's decision, and
her petition and memorandum submitted to this court. Even though petitioner was not able to file an appeal
memorandum, she was able to state her substantive defenses in the pleadings she filed before the
Commission on Audit and this court. According to petitioner, the money that was lost through robbery was
not a result of her negligence. She kept the money in "pearless" boxes for practical and not for malicious
reasons.
The decisions of the State Auditor, the Commission on Audit Director, and the Commission on Audit had
considered these facts and defenses before they made conclusions' against petitioner. Therefore, petitioner
cannot say that her due process rights were violated for the lack of order to file an appeal memorandum. chanRoblesvirt ualLawlibrary
II
Relief from cashier's liability cannot be granted if the cashier was negligent in keeping funds
under his or her custody
As a cashier for the National Food Authority, petitioner qualified as an accountable officer under Presidential
Decree No. 1445. Accountable officers are government officers whose duties require them to possess or be
in custody of government funds or properties.82 They are in charge of the safekeeping of the funds or
properties under their custody.83
Presidential Decree No. 1445 makes cashiers liable for the value of the money or property in their custody in
case they were lost because of negligence or unlawful deposit, use, or application. Thus: chanroblesvirtuallawlibrary
Section 105. Measure of liability of accountable officers.
(1) Every officer accountable for government property shall be liable for its money value in case of improper
or unauthorized use or misapplication thereof, by himself or any person for whose acts he may be
responsible. We shall likewise be liable for all losses, damages, or deterioration occasioned by negligence in
the keeping or use of the property, whether or not it be at the time in his actual custody.
(2) Every officer accountable for government funds shall be liable for all losses resulting from the unlawful
deposit, use, or application thereof and for all losses attributable to negligence in the keeping of the funds.
Imposing liability on cashiers for lost money or property in their custody means that the value of the money
or property becomes their debt.
The Commission on Audit has the power to withhold payment of money due to persons indebted to the
government. Section 37 of Presidential Decree No. 1445 provides: chanroblesvirtuallawlibrary
Section 37. Retention of money for satisfaction of indebtedness to government. When any person is
indebted to any government agency, the Commission may direct the proper officer to withhold the payment
of any money due such person or his estate to be applied in satisfaction of the indebtedness.
Petitioner does not deny that the money for which she was accountable as a cashier was lost through
robbery. She also did not deny that she kept the greater portion of the amount lost, not in the vault, but in
boxes, for practical reasons. She was not motivated by malice when she kept the money that was in her
possession in the boxes.
Without going to the issue of the existence of negligence, the Commission on Audit may already issue a
withholding order for petitioner's salaries and emoluments because of this. Petitioner's act of keeping the
money in boxes instead of in the vault can be subsumed under "unlawful deposit" that may cause a cashier
to incur liability in case the unlawfully deposited money was lost.
A similar case, Leano v. Domingo,84 showed that the safety of money cannot be ensured when it is deposited
in enclosures other than the safety vault. Leano also involves a government cashier whose money
accountability was lost through robbery. As in this case, the cashier did not keep her money accountabilities
in the vault. Requesting this court to review the Commission on Audit's denial of her request for
accountability, Leano argued that she had no other choice but to use a steel cabinet to keep her money
accountabilities because the former cashier did not entrust to her the safety vault's combination. This court
upheld the Commission on Audit's decision to deny Leano's request for relief from accountabilities and found
her to be negligent in handling her money accountabilities: chanroblesvirtuallawlibrary
[I]t is evident that petitioner fell short of the demands inherent in her position. As aptly argued by the
Solicitor General, an exercise of proper diligence expected of her position would have compelled petitioner to
request an immediate change of the combination of the safe. However, the record is bare of any showing
that petitioner had, at least, exerted any effort to have the combination changed, content with the fact that,
according to her, the former cashier also used the steel cabinet as depository of the funds.
In addition, it was found that the use of the steel cabinet was not a wise and prudent decision. The steel
cabinet, even when locked, at times could be pulled open, thus it can be surmised that even without the use
of a key, the robbery could be committed once the culprits succeed in entering the room (Progress Report of
the Police dated February 28, 1985). Moreover, the original key of the steel cabinet was left inside a small
wooden box placed near the steel cabinet; it is therefore highly possible that the said steel cabinet was
opened with the use of its original key (Police Alarm Report). 85 cralawlawlibrary
Hence, keeping National Food Authority collections outside the vault constituted negligence on the part of
petitioner.
The test of negligence is stated in Picart v. Smith, Jr.:86

ChanRoblesVirtualawlibrary
The test by which to determine the existence of negligence in a particular case may be stated as follows: Did
the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily
prudent person would have used in the same situation? If not, then he is guilty of negligence. 87 cralawlawlibrary
"The existence of negligence in a given case is not determined by reference to the personal judgment of the
actor in the situation before him. The Law considers what would be reckless, blameworthy, or negligent in
the man of ordinary intelligence and prudence and determines liability by that." 88
Petitioner is negligent because she failed to use "that reasonable care and caution which an ordinarily
prudent person would have used in the same situation."89 A cashier in her position would have used the
vault to keep her collections. Petitioner failed to do this. Her negligence is made more pronounced by the
fact that the collections kept in the vault were not taken by the robbers.
Petitioner insists that the space in the vault was not enough to accommodate all her collections. However,
she admitted that she had been receiving relatively large collections in the past three (3) months prior to
the robbery. She should have requested an additional vault wherein she could safely keep her collections.
She could also have set aside time to deposit her collections for the day considering the. amount of cash she
had been collecting, in order to prevent its accumulation. This could have ensured that the vault's space
would be sufficient to keep any remaining collection after the deposit. This could also have prevented her
collections from accumulating to an amount that rendered any loss through untoward incidents such as
robbery significant. Petitioner failed to even allege that she exerted effort to obtain additional vaults or to
set aside time to deposit her collections to the bank.
For these reasons, petitioner cannot be relieved from liability. A person who is negligent in keeping the
funds cannot be relieved from liability.90
WHEREFORE, the petition is DENIED.
SO ORDERED. chanroblesvirtuallawlibrary
Relief from Property

Accountability
attyrcd / February 5, 2010
When a loss of government funds or property occurs while they are in transit or
the loss is caused by fire, theft, or other casualty or force majeure, the officer
accountable therefor or having custody thereof shall immediately notify the
Commission or the auditor concerned and, within thirty days or such longer period
as the Commission or auditor may in the particular case allow, shall present his
application for relief, with available supporting evidence. Whenever warranted
by the evidence credit for the loss shall be allowed. An officer who fails to comply
with this requirement shall not be relieved of liability or allowed credit for any
loss in the settlement of his accounts. (Sec. 73[1], PD 1445)
The “property” adverted to may be supplies, materials, equipment, buildings and other
tangibles having money value over which the government has title thereto. Documents
destroyed by termites are not by themselves the property contemplated in Section 73
thereof. They may, however, be done in accordance with the rules and regulations
prescribed by the Record Management and Archives Office.
In cases of loss of accountable forms in the custody of collecting and property officers,
including unissued treasury warrants or checks, it shall immediately be reported by the
accountable officers concerned to their respective chiefs of offices or heads of government
entities who, in turn, will at once issue a circular or notice of such loss for the information
and guidance of all collecting and disbursing officers, provincial, city and municipal
treasurers, bureau, provincial and city auditors and other concerned in preventing
against the possible fraudulent use of such accountable forms. (COA Cir. 84-233 dated
Aug. 21, 1984)
Request for relief from accountability for losses of government property shall be made in the
form of a letter, through the chief of office, addressed to the Auditor. The letter shall contain
a statement of the circumstances relating to the loss, the book value, property number and
any additional information necessary for an intelligent decision in the claim for relief. The
request shall be accompanied by sufficient evidence to prove the validity of the claim. This
includes the affidavit of the officer signing the request, containing a statement of the facts
and circumstances surrounding the loss, in addition to a list and description of the articles
lost. The affidavits of the at least two disinterested persons cognizant of the facts and
circumstances surrounding the case shall also be submitted. If only one or no other person is
cognizant of the facts and circumstances about the loss, such conditions shall be stated fully
in the affidavit of the person seeking relief, giving reasons therefore. Immediate report to
the law enforcing agency for investigation must be made.
When the request for relief is not filed within the statutory period of thirty (30) days, an
explanation thereof is required. This means that in addition to the evidence to support the
claim for loss, there should be also be submitted an explanation for the delay in filing the
request beyond the required thirty-day period.
The filing of the notice of the loss immediately upon the occurrence of the loss or within the
reglementary period of thirty days therefrom is clearly a condition precedent to the grant of
relief, otherwise it will be denied. The requirement is mandatory, hence, if the application for
relief is filed beyond the 30-day period, the same cannot be entertained unless the delay is
satisfactorily explained. The rationale for this strict requirement is to enable the Commission
to conduct its own investigation of the reported loss while the clues are still fresh to satisfy
itself that the alleged loss or other casualty had really occurred.
Aside from the notice/request, there must be sufficient evidence of loss, and that it was not
on account of the negligence or fault of the accountable officer. Although the 30-day notice
rule is to be strictly followed, the Commission has granted relief even if notice was made
beyond the period where it was shown that the robbery was actually established by positive
findings of the police and the NBI. (COA Dec. 167, May 12, 1978)
Under this section, the loss that justifies relief from accountability: (1) must occur while the
funds or property are in transit, or (2) is caused by fire, theft or other casualty or force
majeure. “Other casualty or force majeure” is broad enough to cover both force majeure and
fortuitous events. There is no essental difference between fortuitous event and force
majeure. They both refer to causes independent of the will of the obligor.
The burden of proof in cases of request for relief must rest upon the officer sustaining the
loss, and the court will not grant relief unless it is shown by him that such loss occurred
without fault or negligence on his part. Thus, where a disbursing officer is robbed in a public
place, a bank, and the robbery is characterized by the suddenness, boldness, and adroitness
of a practiced hand, and is accomplished by some artifice against which reasonable
prudence could not guard and which human sagacity could not foresee, it is just and
equitable that the officer and his sureties be not held accountable for the loss. (Reynolds, et
al. v. US, 15 Ct. Cls. 314)
Negligence is want of care required by the circumstances. It is a relative or comparative, not

an absolute term, and its application depends upon the situation of the parties, and the
degree of care and vigilance which the circumstances reasonably impose. Negligence is
conduct, not a state of mind or the use of sound judgment. Hence, the existence of
negligence, in a given case, is not determined by reference to the personal judgment but by
behavior of the actor in the situation. (Manila Railroad Co. v. CIR, 106 Phil. 1169)
Negligence has been defined as “the omission to do something which a reasonable man,
guided upon those considerations which ordinarily regulate the conduct of human affairs,
would do, or doing something which a prudent and reasonable man would not do.” (Sangco,
Torts and Damages)
REPUBLIC OF THE PHILIPPINES
SANDIGANBAYAN
Quezon City
--------------------
First Division
PEOPLE OF THE PHILIPPINES, Criminal Case No. 26892

Plaintiff,
- versus -
Present:
ISIDRO T. REYES,
LEONARDO-DE CASTRO,
Municipal Mayor,
PJ, Chairperson
Mambajao, Camiguin,
PERALTA and
Accused.
GESMUNDO, JJ.
Promulgated:
August 15, 2006
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
GESMUNDO, J.:
The accused, Isidro T. Reyes, a public officer, being the

municipal mayor of Mambajao, Camiguin at the time material to
this case, is charged with Malversation of Public Property under
Article 217 of the Revised Penal Code (RPC), as amended by
Republic Act No. 10601, in an Information dated 30 August 2001:
“That on or about 23 October 2000, or shortly prior to or

subsequent thereto, in the Municipality of Mambajao, Province of
Camiguin, Philippines, and within the jurisdiction of this Honorable
Court, above-named accused ISIDRO T. REYES, a high-ranking public
officer, being then the Municipal Mayor of the Municipality of Mambajao,
Camiguin, and as such is responsible and accountable for the properties
received by him by reason of the duties of his office, and who was
entrusted and officially issued with one (1) unit 9MM Pistol (Beretta),
with Serial No. M17849Z, two (2) pieces of magazine, and twenty five (25)
rounds of 9 MM ammunitions, did then and there willfully, unlawfully
and feloniously, through abandonment or negligence, permit any other
1 An Act Increasing the Penalty For the Crime of Malversation of Public Funds or
Property, by Amending Article Two Hundred Seventeen of the Revised Penal Code.
person to take away, embezzle or appropriate the aforestated public
properties with a total value of P42,375.00; and despite repeated official
demands from the Philippine National Police (PNP) Mambajao Police
Station, Mambajao, Camiguin, directing him to turn-over the said
properties, said accused failed to yield and/or turn-over the same,
thereby, causing damage and prejudice to the Government and public
interest.
CONTRARY TO LAW.”2
Before the date of the scheduled arraignment, the accused

moved to dismiss the case on the ground that he had paid for the
value of the lost firearm upon advise of the Regional Directors of the
Commission on Audit (COA) and the Philippine National Police
(PNP) of Region 10 and that after such payment the case against
him shall be considered closed. 3
The Court in its Order dated 17 January 1997 declared that

the subsequent restitution or the belated payment of the value of
the property alleged to have been malversed cannot operate to
exonerate the accused from criminal liability for malversation of
public property and subsequently ordered that his arraignment
should proceed as scheduled.4 Consequently, the accused was
arraigned on 17 January 2002 and with the assistance of his
counsel de parte, pleaded not guilty.5
2 Record, p. 1.
3 Id at 61-63.
4 Id. at 72.
5 Id. at 71.
On 2 September 2003, the parties submitted their Joint
Stipulation of Facts and Issues6 and upon receipt thereof, the Court
7
deemed the pre-trial terminated.
Trial ensued with the prosecution presenting its testimonial

and documentary evidence culminating with its written Formal
Offer of Evidence dated 27 February 2004. 8 Over the objection of
the accused,9 the Court resolved to admit all the exhibits offered as
part of the testimony of the prosecution witnesses considering that
the existence of all the said exhibits was admitted by the accused in
his objection/comments to the prosecution’s written formal offer of
evidence.10 Moreover, at the pre-trial, the accused admitted the due
execution of Exhibits “B” to “I”.
After the prosecution rested its case, accused took the witness
stand. This was followed by his formal offer of evidence consisting
of Exhibits “1” to “8” which the Court admitted as part of his
testimony and over the objections of the prosecution in view of the
admissions made by the latter in open court and in the pre-trial. 11
6 Records, pp. 175-182.

7 Id at 209.
8 Id at 247-254.
9 Id at 257-258.
10 Id at 265.
11 Id at 317-B.
Thereafter, the prosecution having manifested that it was not
submitting any rebuttal evidence, the Court directed the parties to
submit simultaneously their respective memoranda. 12 The
prosecution and the defense complied with the directive on 1 April
2005 and 6 April 2005, respectively; 13 hence, the case is now
deemed submitted for decision.14
DISCUSSION
Evidence of the Prosecution
The prosecution claims that there is overwhelming evidence

showing that the accused, Isidro T. Reyes, has committed the crime
of malversation of public funds as defined and penalized under
Article 217 of the RPC.
First, the accused had received and thereafter had in his

custody one unit 9 mm. pistol berretta bearing serial number
M17849Z, two pieces of magazine and 25 rounds of 9 mm
ammunition (subject properties) as evidenced by the Memorandum
Receipt dated 12 April 1999 duly signed by him. 15
12 Id.
13 Record, pp. 320-350; 351-357.
14 Id at 317-B.
15 Exhibit “B” for the prosecution.
This was not denied by the accused and, in fact, he
acknowledged receipt of subject properties in the Affidavit of Loss
he executed which the defense even offered and marked as Exhibit
“4.” The subject properties were personally delivered by SPO4
Antonio Cabrera Chan (SPO4 Chan) and SPO3 Paul A. Bacor (SPO3
Bacor) in the residence of the accused on the date indicated in said
memorandum receipt.16 This fairly illustrated accused’s receipt and
custody of the subject properties which under the law he is
accountable for.
Second, the accused failed to return the subject property when

required to do so by Chief Inspector Teodorico B. Gallego (Chief
Inspector Gallego) of the Mambajao Police Station in compliance
with the radio message from the regional headquarters of the
Philippine National Police dated 6 October 2000 to recall all issued
9mm pistols together with magazines and ammunition. 17 Chief
Inspector Gallego testified that he sent a letter 18 to accused
requesting the latter to turn-in the subject properties to the PNP.
Accused, however, was unable to return the subject properties and
submitted instead an Affidavit of Loss19 dated 23 October 2000
claiming that the subject properties, which were kept inside the
mayor’s office, could no longer be found.
16 Testimony of SPO4 Chan, TSN, 2/27/04, pp. 11-13.

17 Exhibit “C” for the prosecution. Testimony of Chief Inspector Gallego, TSN, 9/20/03,
pp. 24-30.
18 Exhibit “D” for the prosecution.
19 Exhibit “4” for the defense.
The PNP, through Officer-in-Charge SPO4 Chan, wrote
another letter to the accused on 3 March 2001 to return the subject
properties in pursuance of the directive contained in the radio
message20 dated 2 March 2001 from the PNP Regional Headquarters
to recall subject properties for subsequent turn-over to the PNP. 21
In response, the accused requested 22 on 7 March 2001 for 120 days
and should this prove futile, he be allowed replace the pistol with
another unit of the same brand and quality. However, the request of
the accused was denied23 on 26 March 2001 and he was only given
until 31 March 2001 to return the subject properties otherwise
charges will be filed against him.
On 24 April 2001, accused having failed to return the subject

properties on the date given him, the Chief of Police of the
Mambajao Police Station filed a complaint against him for
24
malversation of public property.
Finally, it was only on 3 January 2002 that the accused paid P

40,650.00 in restitution for the subject properties. This was a good
two years after the complaint for malversation against him was
filed. The prosecution then opined that although the accused had
20 Exhibit “E” for the prosecution.
21 Testimony of Chief Inspector Gallego, TSN, 9/20/03, pp. 24-30.
22 Exhibit “F” for the prosecution.
23 Exhibit “G” for the prosecution.
24 Exhibit “H” for the prosecution.
paid P40,650.00 he cannot be absolved from the crime of
malversation of public funds or property because the subsequent
restitution of the property alleged to be malversed does not
extinguish the criminal liability of the accused, at best it can only
be appreciated as a mitigating circumstance. The prosecution
concluded that despite the belated payment of the accused for the
subject properties, he is still liable for violation of Article 217 of the
RPC.
Evidence for the Accused
The accused had never denied that he had in his possession a

berretta pistol with serial number M-17849Z together with its
magazine and ammunition. He explained that the subject
properties were given to him on 12 April 1999 at his residence as
birthday gift by Congressman Jesus Jurgene Romualdo
(Congressman Romualdo) of the Lone District of the province of
Camiguin such that he was surprised when a few days later, he
was asked to sign a Memorandum Receipt25 for the subject
properties by SPO4 Chan and SPO3 Bacor. 26
Although the berretta pistol, magazines and ammunition were

public property, the accused claimed that not being an organic
member of the PNP, he was not accountable for them. The
25 Exhibit “B” for the prosecution.

26 TSN dated 8/3/05, pp. 6-7, 30-31.
accountability lies with the Mambajao Police Station as it was
indicated in the Memorandum Receipt that the subject properties
were for the use of the Mambajao Police Station and not for the
Office of the Mayor of the municipality of Mambajao, Camiguin.
The accused further claimed that from the time he received the
subject properties, he had not been negligent in their safekeeping
for he had never taken them out from a locked drawer in his table
at the mayor’s office in the municipal building of Mambajao,
Camiguin. And it was only when he received the letter dated 30
October 2000 from Chief Inspector Gallego requesting the return of
the subject properties that he discovered that his office drawer had
been forcibly opened and the subject properties missing therefrom.
After discovery of the loss of the said items, the accused took
painstaking effort to retrieve them and, failing which, he executed
an affidavit of loss which he submitted to the Mambajao Police
Station sometime in October 2000.27
Accused further testified that there was no response from the

PNP until 3 March 2001 when SPO4 Chan sent a letter requesting
the accused to turn-over the subject properties. Replying thereto,
the accused stated in a letter dated 7 March 2001 that he had
previously submitted an affidavit of loss and that despite diligent
efforts the subject properties could no longer be located. At the

same time, the accused sought from the PNP an extension of time to
locate the subject properties28 which the Chief of Police of
Mambajao, Camiguin denied as he was given only until 31 March
2001 to return subject properties. Thereafter, the accused wrote a
letter dated 27 March 2001 requesting the PNP officials concerned
that in the event the said items cannot be found, the accused will
just pay for their value.29
Meanwhile, on 26 June 2000, the Board of Survey of the PNP

convened to determine accused’s liability for the loss of the subject
properties. After evaluation of all the records of the investigation,
the Board of Survey found the SPO4 Chan (as officer-in-charge of
the Mambajao Police Station) and Supply Officer SPO3 Bacor
administratively liable for issuing a Memorandum Receipt for the
subject properties to accused -- who is a non-organic member of the
PNP -- without written authorization from the PNP Provincial
Director.
The Board found accused civilly liable for the loss of the
subject properties. It recommended, however, that accused be
dropped from the property accountability of the Mambajao Police
Station and from the Book of Accounts of the PNP after he pays for
the lost items. Thus, on 3 January 2002, in compliance with the

findings and recommendation of the Board of Survey, the accused
paid for the subject properties in the amount of P40, 650.00. 30 As a
consequence of the foregoing, the accused contended that the
subsequent payment of the subject properties exonerated him from
liability for malversation of public property.
The Court’s ruling
The Revised Penal Code defines the crime of malversation of

public funds or property as follows:
Art. 217. Malversation of public funds or property. – Presumption of

malversation. - Any public officer who, by the 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 misappropriation or malversation of such funds or property …
xxx xxx xxx
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, shall be prima facie evidence that he has put such
missing funds or property to personal use.

To be convicted of the above-cited crime, it is essential that the
following elements concur:
(1) The offender is a public officer;
(2) He has the custody or control of funds or property by the reason of

the duties of his office;
(3) The funds or property involved are public funds or property for which
he is accountable; and
(4) He has appropriated, taken or misappropriated, or has consented to,

or thorough abandonment or negligence permitted, the taking by
another person of, such funds or property.31
From the joint stipulation of facts appearing in the Pre-Trial

Order, the following are the undisputed facts:
1. Accused Isidro T. Reyes is a high-ranking public official

being then the municipal mayor of Mambajao, Camiguin;
2. Accused had in his custody one (1) unit of a 9 mm pistol

beretta with serial no. M17842Z, two pieces of magazine and
25 rounds of 9 mm ammunition;
3. Accused received a letter dated October 30, 2000 from Police

Inspector Teodorico B. Gallego of the PNP Chief of Police,
Mambajao Police Station, requesting/demanding the
turnover of the aforecited firearm and ammunition;
4. Accused received a letter dated March 3, 2001 from Officer-

In-Charge SPO4 Antonio Cabrera Chan, of the Camiguin
Police Office, demanding/requesting the turnover of the
aforecited firearm and ammunition;
31 People v. Enfermo, G.R. Nos. 148682-85, 30 Nov. 2005 citing Rueda v. Sandiganbayan,
G.R. No. 129064, 29 Nov. 2000, 346 SCRA 341; See also Sarigumba v.
Sandiganbayan. G.R. Nos. 154239-41, 16 Feb. 2005, 451 SCRA 533.
5. Accused was not able to turn over the 9mm pistol beretta,
two pieces magazine and 25 rounds of 9 mm ammunition;
6. The accused never denied his possession of the pistol with

magazine at his office when he discovered the loss of the
same;
7. The accused asked for time from the PNP authorities to

locate the pistol, the magazine and the ammunitions
involved in this case;
8. The PNP authorities or the Board of Survey concerned

recommended that the accused be made to pay [for] the
concerned pistol, magazine and ammunitions, after which
the same should be dropped from the accountability of the
Mambajao Police Station;
9. The accused paid for the pistol, the magazine and the
ammunitions consistent with the recommendation of the
Board of Survey only on January 3, 2002;
10. The accused was not an organic member of the PNP when
the memorandum receipt was issued to him.”32
The first element of the crime is covered by the first

stipulation. The second stipulation is an admission of the public
nature of the subject properties. Stipulations three, four and five
establish accused’s failure to return subject properties upon
demand by the proper officials of the PNP.
The primordial issue that must be resolved, therefore, is

whether accused is accountable for the subject properties and,
32 Record, pp. 202-203.

corollary thereto, whether his custody or control over the same was
by reason of the duties of his office. If so, his failure to account for
the subject properties upon proper demand for their return
constitutes prima facie evidence of misappropriation which he has
to rebut with countervailing evidence.
The prosecution argues that accused is an accountable public

officer and that he received the subject properties by reason of the
duties of his office as Municipal Mayor of Mambajao, Camiguin. It
contends thus:
“Were it not for accused’s position as Municipal Mayor, he would

not have been issued and entrusted with the subject government
properties. Notably, he had the option to resist custody of the
government properties, if he believed then that he did not have to be
entrusted or given custody of the subject government properties, not
being a policeman. He had the option to refuse their custody, control
and safekeeping. He was after all, the municipal mayor and not just any
other employee who was subject to another person’s will or desire. His
claim that he thought the government properties were gifts to him is
absurd as he in fact signed willingly and voluntarily an official
government document or a Memorandum Receipt to prove that the said
properties issued to him are in fact government properties, and the same
were in his custody and that he had the duty to return them when duly
demanded. His receipt of the custody and safekeeping of the government
properties therefore had the accompanying duty and responsibility to
account for the same, as is the regular and legal process in any public or
bureaucratic organization.”33
33 Record, pp. 334-335.

Accused, on the other hand, insists that he is not accountable
for the subject properties arguing thus:
“1. He was NOT an organic member of the PNP at the time he signed
the memorandum receipt. (Admitted by the prosecution in paragraph
10 of the joint stipulation of facts and quoted in page 2 of the pre-trial
order).
2. Not being an organic member of the PNP by no stretch of the

imagination can he be an accountable officer and this is shown by the
phraseology of Exhibit B of the prosecution which states: “… which will
be used in the office of the Mambajao Police Station.” So the turning
over of the possession of the pistol, magazine and the ammunitions is an
irregularity since the same is for the use of the Mambajao Police Station
but not in the Office of the Mayor or for the mayor.
3. Exhibit 2 (quoted in page 4 of the pre-trial order) and which the

prosecution admits the existence, due execution and the truth of
Exhibits “1”, “2”, “5” and “6” which admits the accountability of the
pistol, magazine and ammunitions lies with the Mambajao Police Station
NOT with the accused, to wit:
‘Exhibit “2” Official recommendation of the Board of Survey

recommending that the accused be made to pay for the pistol,
magazine and ammunitions, after which the same shall be
dropped from the ACCOUNTABILITY of the Mambajao Police
Station.’
So the prosecution admits, the ACCOUNTABILITY lies with the

Mambajao Police Station NOT with the accused.”34
34 Id. at 354-355 (Emphasis in original).

After a thorough review of the facts of the case, we hold that
accused, as Municipal Mayor, is accountable for the subject
properties he received from the Mambajao Police Station by virtue of
the functions of his office.
An accountable officer under Art. 217 of the RPC is a public

officer who, by reason of his office, is accountable for public funds
or property.35 Section 101(1) of the Government Auditing Code of
the Philippines (Presidential Decree No. 1445) defines accountable
officer to be “(e)very officer of any government agency whose duties
permit or require the possession or custody of government funds or
property and who shall be accountable therefor and for the
safekeeping thereof in conformity with law.” 36
In the determination of who is an accountable officer, the

Supreme Court has invariably held that “it is the nature of the
duties which the public officer performs — the fact that, as part of
his duties, he received public money for which he was bound to
account, and not the nomenclature or the relative importance the
position held — which is the controlling factor.” 37
35 See also Querijero v. People, et al., G.R. No. 153483, 14 February 2003, 397 SCRA 465,
473-474.
36 Id. (Emphasis supplied)

37 Id.(Emphasis supplied)
The duties and functions of municipal mayors are defined by
law. Section 444(b) of Republic Act No. 7160 (otherwise known as
the Local Government Code of 1991) provides, among other things,
that Municipal Mayors shall:
“(2) Enforce all laws and ordinances relative to the governance of the
municipality and the exercise of its corporate powers provided for under
Section 22 of this Code, implement all approved policies, programs,
projects, services and activities of the municipality and, in addition to the
foregoing shall,:
Xxx
(iv) Be entitled to carry the necessary firearm within his

territorial jurisdiction;
(v) Act as the deputized representative of the National Police

Commission, formulate the peace and order plan of the
municipality and upon its approval, implement the same
and exercise general and operational control over the local
police forces in the municipality in accordance with R.A.
No. 6975.”
On the other hand, Republic Act No. 6975, otherwise known

as the Department of the Interior and Local Government Act of
1990, defines and delineates the participation of municipal mayors
in the administration of the PNP. Section 51 thereof provides in
part:
“SECTION 51. Powers of Local Government Officials Over the
PNP Units or Forces. — Governors and mayors shall be deputized as
representatives of the Commission in their respective territorial
jurisdiction. As such, the local executives shall discharge the following
functions:
Xxx
(b) City and Municipal Mayors — (1) Operational Supervision and

Control. The city and municipal mayors shall exercise operational
supervision and control over PNP units in their respective jurisdiction
except during the thirty (30) day period immediately preceding and the
thirty (30) days following any national, local and barangay elections.
During the said period, the local police forces shall be under the
supervision and control of the Commission on Elections.
The term "operational supervision and control" shall mean the

power to direct, superintend, oversee and inspect the police units and
forces.
It shall include the power to employ and deploy units or elements

of the PNP, through the station commander, to ensure public safety and
effective maintenance of peace and order within the locality. For this
purpose, the term "employ" and "deploy" shall mean as follows:
"Employ" refers to utilization of units or elements of the PNP for

purposes of protection of lives and properties, enforcement of laws,
maintenance of peace and order, prevention of crimes, arrest of criminal
offenders and bringing the offenders to justice, and ensuring public
safety, particularly in the suppression of disorders, riots, lawless
violence, rebellious seditious conspiracy, insurgency, subversion or other
related activities.
"Deploy" shall mean the orderly organized physical movement of
elements or units of the PNP within the province, city or municipality for
purposes of employment as herein defined.
(2) Integrated Community Safety Plans. — The municipal/city mayor

shall, in coordination with the local peace and order council of which he
is the chairman pursuant to Executive Order No. 309, as amended,
develop and establish an integrated area/community public safety plan
embracing priorities of action and program thrusts for implementation by
the local PNP stations.
It shall, likewise, be the duty of the city or municipal mayor to

sponsor periodic seminars for members of the PNP assigned or detailed
in his city or municipality in order to update them regarding local
ordinances and legislations.
[3) Administrative Disciplinary Powers. — In the areas of discipline,

city and municipal mayors shall have the powers to impose, after due
notice and summary hearings, disciplinary penalties for minor offenses
committed by members of the PNP assigned to their respective
jurisdictions, as provided in Section 41 of this Act.
(4) Other Powers. — In addition to the aforementioned powers, city

and municipal mayors shall have the following authority over the PNP
units in their respective jurisdictions:
(i) Authority to choose the chief of police from a list of five (5) eligibles
recommended by the provincial police director, preferably from the
same province, city or municipality.
(ii) Authority to recommend the transfer, reassignment or detail of

PNP members outside of their respective city or town residences;
and
(iii) Authority to recommend, from a list of eligibles previously
screened by the peace and order council, the appointment of new
members of the PNP to be assigned to their respective cities or
municipalities without which no such appointment shall be
attested.”
From the express terms of Republic Act No. 7160 in relation to

Republic Act No. 6975, accused, as municipal mayor, is duty-bound
to enforce all laws and ordinances relative to the governance of his
municipality and, in carrying out such function, he is given
operational supervision and control over the local police and is
entitled to carry the necessary firearm within his territorial
jurisdiction.
Accused insists at the outset that the subject properties were

given to him by Congressman Romualdo as birthday presents which
he received in his house on his natal day and that he signed the
memorandum receipt over said properties much later.
We find this assertion undeserving of belief considering that

there is credible documentary and testimonial evidence of accused
having received subject properties on his birthday (12 April 1999)
not from Congressman Romualdo but from Mambajao Police officers
SPO4 Chan and SPO3 Bacor.
Exhibit “B” is the Memorandum Receipt signed by accused
which is dated 12 April 1999 and which indicates that accused
received the subject properties from SPO3 Bacor. Exhibit “I” is the
joint affidavit of SPO4 Chan and SPO3 Bacor wherein they stated,
among other things, that on 12 April 1999 they issued a
memorandum receipt over the subject properties and that said
properties were duly received by accused himself. On the witness
stand, SPO4 Chan testified that he and his “Supply PNCO” 38
delivered the subject properties to accused on 12 April 1999 at the
latter’s residence.39 It is presumed that official duty was regularly
performed by said police officers in the absence of any testimony or
document that can reasonably corroborate accused’s version of the
events.
More telling, accused’s own exhibit “2”, which is the report of

the proceedings of the Board of Survey of the Camiguin Police
Provincial Office and which was also offered as part of the testimony
of the accused, proves that he received subject properties directly
from SPO4 Chan and SPO3 Bacor, thus:
“MEMBER: (PINSP BAWI) My next questions will be intended to SPO3

Bacor, did you obey the order of your OIC, SPO4 Chan?
38 Referring to SPO3 Bacor.

39 TSN, 2/27/04, pp. 12-13.
WITNESS: Yes, Sir I prepare[d] the Memorandum Receipt for one (1)
each Pistol 9MM Beretta SN: M17849Z with Two (2)
Magazines and Twenty Five (25) rds of ammunition.
MEMBER: (PINSP BAWI) What happened next?
WITNESS: (SPO3 Bacor) On 12 April 1999, the firearm and accessories

stated above were issue[d] to then Mayor Isidro T. Reyes
and as proof of this ex Mayor Reyes signed the MEMO
RECEIPT dated 12 April 1999.
RECORDER: I proposed that the MEMO RECEIPT signed by Ex-Mayor be

tagged as exhibit “B”.
CHAIRMAN: The proposal is approved. Let the Memo Receipt be

incorporated into the records of this proceeding and be
marked ass Exhibit “B” are there any follow-up questions
from the member of the board.
MEMBER: (PSINP ELISEO B. BORROMEO) My question will be

addressed to Ex-Mayor Isidro T. Reyes. Sir, do you have
any objection with regards to the statement of the witnesses
(SPO4 Chan and SPO3 Bacor)?
MAYOR REYES All of their statements are true, I signed the Memo
Receipt dated 12 April 1999 stating therein that I
acknowledged to have received from SPO3 Paul Acebar
Bacor, Supply PNCO of Mambajao PS a firearm, pistol
9MM, Beretta SN: M17849Z with Two (2) Magazines and
Twenty five (25) rds ammunition.”40
40 Record, p. 119.
Assuming for the sake of argument that accused initially
received the subject properties from Congressman Romualdo, the
fact still remains that accused did not subsequently return the
subject properties when he was later asked to sign a memorandum
receipt therefore. By signing the memorandum receipt, accused not
only admitted the public nature of the properties but he also
acknowledged his accountability over the same. Verily, public
property can only be used for a public purpose. 41 It stands to
reason that when accused was required to sign a memorandum
receipt for his custody of the subject properties, he was signing not
as a private individual but as Municipal Mayor pursuant to his duty
to enforce all laws and ordinances relative to the governance of his
municipality with the power of general and operational control over
the local police forces and with the right to carry the necessary
firearm within his territorial jurisdiction.
Accused cannot hide behind the excuse that he is not an

organic member of the PNP since what is essential is that accused
had custody and control over the subject properties by reason of the
duties of his office. Accordingly, as the Supreme Court has held in
a catena of cases, what is controlling is the nature of the duties of
the accused and not the name or relative importance of his office or
employment.42 Thus, it is immaterial that the memorandum receipt
41 Presidential Decree No. 1445 otherwise known as the “Government Auditing Code of
the Philippines” states in Section 4 (2) thereof that: “Government Funds of property
shall be spent or used solely for public purpose.”
42 People v. Hipol, G.R. No. 140549, 22 July 2003, 407 SCRA 179. See also Quiñon v.
People, G.R. No. 136462, 19 September 2002 389 SCRA 412; Querijero v. People, supra
indicates that the properties will be used “in the office of Mambajao
Police Station.” In fact, a mere clerk may be held guilty of
malversation if he or she is entrusted with public funds or property
and subsequently misappropriates the same. 43 In People v. Hipol,44
the Supreme Court held:
“What is essential is that appellant had custody or control of

public funds by reason of the duties of his office. He is an employee of, or
in some way connected with, the government and, in the course of his
employment, he receives money or property belonging to the government
for which he is bound to account.”
Finally, accused refers to exhibit “2” which is the report of the

proceedings of the Board of Survey of the PNP Camiguin Police
Provincial Office to prove that the accountability for subject
properties lies not with him but with the Mambajao Police Station.
Contrary to the position taken by the accused, the

recommendations by the Board of Survey to the effect that --
“1. xxx Ex Mayor Isidro T. Reyes should be ordered to pay for the lost
of one (1) 9MM Pistol (Beretta) SN m17849Z, two (2) magazines f/9MM
and twenty five (25) rds ammos f/9MM based on the replacement cost
and be dropped from the property accountability of Mambajao Police
Station and likewise be dropped from the Book of Accounts of RSAO, PNP
PRO 10.
note 35; Rueda, Jr. v. Sandiganbayan, G.R. No. 129064, 14 Nov. 2000, 346 SCRA 341;
U.S. v. Velasquez, 32 Phil. 157 (1915).
43 Barriga v. Sandiganbayan, 26 April 2005.
44 G.R. No. 140549, 22 July 2003, 407 SCRA 179.
2. Both SOP4 Antonio Cabrera Chan and SPO3 Paul Acebar Bacor be
investigated for Grave Abuse of Authority.
Xxx”45
are not binding on this Court for the simple reason that the
determination of who is an accountable officer within the meaning
of Article 217 of the RPC is a judicial function. Moreover, the
decision of the Board of Survey finding accused civilly liable was
based on its assessment that accused, not being an organic
member of the PNP, is not accountable for the subject properties.
As already discussed herein, however, it is the nature of the duties
of accused and not the name or relative importance of his office or
employment that is controlling.
Having disposed of the first three elements, the Court must

now determine if the prosecution has proven beyond reasonable
doubt the last element, i.e. that the accused has appropriated,
taken or misappropriated, or has consented to, or thorough
abandonment or negligence permitted, the taking by another person
of subject properties.
It is well-settled that to justify conviction for malversation of

public funds or property, the prosecution need only prove that the
45 Record, p. 121.
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 the disappearance of the same. 46
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 explain satisfactorily. 47
In herein case, accused admits that he failed to produce the

subject public properties at the time of demand by Police Inspector
Gallego. Since accused is an accountable officer within the purview
of Article 217 of the RPC, his failure “to have duly forthcoming any
public funds or property with which he is chargeable, upon demand
by any duly authorized officer, shall be prima facie evidence that he
has put such missing funds or property to personal use.” The
presumption of misappropriation can be negated when accused is
able to present sufficient evidence that can nullify any likelihood
that he had put the subject properties to personal use. 48
46 People v. Enfermo, supra note 31; People v. Pepito, G.R. Nos. 112761-65, 3 February
1997, 267 SCRA 358,368, See also Felicilda v. Grospe, G.R. No. 102494, 3 July 1992,
211 SCRA 285.
47 People v. Enfermo, supra.; Navallo v. Sandiganbayan, G.R. No. 97214, 18 July 1994,
234 SCRA 175, 185; Villanueva v. Sandiganbayan, G.E. No. 95627, 16 August 1991,
200 SCRA 722, 734.
48 Querijero v. People, supra note 35 at 473 citing Madarang v. Sandiganbayan, 355
SCRA 525 and Diaz v. Sandiganbayan, G.R. No. 125213, 26 January 1999, 302 SCRA
118.
As proof that he did not put the subject properties to personal
use, accused maintains that he kept these under lock and key in
his office drawer. From time to time, he would inspect them but he
never took them out. Finally, when he was asked to return the
subject properties, he was greatly surprised to discover that his
office drawer was forcibly opened with the subject properties
missing therefrom. He then exerted diligent effort to locate the
missing items without much success. He subsequently executed an
affidavit of loss dated 23 October 2000, which was marked and
offered as Exhibit “4”.
Notwithstanding the foregoing testimony, the presumption of

misappropriation stands unrebutted. The evidence on record,
however, fails to show that accused misappropriated said public
property for his personal aggrandizement. Rather, the evidence
points to the conclusion that, at the very least, the loss of the
subject properties was through the negligence of the accused.
The presumption of misappropriation stands even when the

evidence points to negligence as the cause of the malversation as
said crime can be committed either intentionally or by negligence. 49
The Supreme Court, in Cabello v. Sandiganbayan,50 held that “(t)he
49 Cf. Diego v. Sandiganbayan, G.R. No. 139282, 4 September 2000, 339 SCRA 596, 603.
50 G.R. No. 93985, 14 May 1991, 197 SCRA 94.
dolo or the culpa present in the offense is only a modality in the
perpetration of the felony.” Thus, “(e)ven if the mode charged differs
from the mode proved, the same offense of malversation is involved
and conviction thereof is proper.”51
The negligence of the accused in the safe-keeping of the

subject firearms has been proven beyond reasonable doubt. His
negligence, being flagrant and palpable, amounts to a breach of
duty which is punishable under the law.52
To begin, accused was flippant in his safekeeping of the

subject properties. While he may have kept the subject properties
under lock and key in his office drawer, he would sometimes forget
to lock this same office drawer due to various matters occupying his
mind.53 And, while the front door of accused’s office was always
locked at the end of every working day, the side door was
“sometimes forgotten to be locked at the end of every working
day.”54 This side door was utilized by accused’s personnel as entry
point whenever he was out of the office.55 Naturally, that accused’s
room was not always locked made it possible for anyone of his staff,
or any stranger for that matter, to gain access to his room while he
51 Ibid.
52 Cf. Diego v. Sandiganbayan, supra note 49.
53 This is shown from the statements accused made in his affidavit of loss dated 23
October 2000. While on the witness stand, accused affirmed the truth of all the
statements he made in said affidavit of loss (see TSN 3/8/05, p. 13).
54 Id.
55 Id.
was out of it. These circumstances amply show that accused was
too relaxed in protecting the subject properties. In Aquino-Castillo
v. Sandiganbayan,56 the Supreme Court affirmed the conviction of
the accused therein for malversation through negligence as she was
too relaxed and casual in safeguarding the public funds entrusted
to her custody.
From the foregoing, it is clear that accused failed to exercise

the necessary precautions to secure the safekeeping of the subject
properties under his care. Guns with complete accessories, per se,
are already dangerous to keep. It goes without saying that they
must be guarded with more care and vigilance than what is usually
required of objects less dangerous. Add to this the fact that the
subject properties do not belong to accused, thus, he should have
been extra-ordinarily diligent in their safekeeping.
Accused’s actions after he allegedly discovered that the subject

properties were missing also leave much to be desired. It also casts
serious doubt as to the truth of his assertion that he was a victim of
theft.
56 G.R. No. 9140, 8 February 1990 (cited in SANDIGNBAYAN REPORTER, Vol. 2, pp. 445-
447).
Accused claims that he exerted diligent effort in searching for
the stolen properties. Other than this self-serving assertion,
however, we do not see any evidence of accused lifting a finger to
recover said properties other than having filed an affidavit of loss.
Considering that he is a municipal mayor with vast resources at his
disposal and considerable authority over the local police, at the very
least he could have requested an investigation into the alleged theft
or robbery with the end view of recovering the lost items. 57 No such
investigation took place which again points to accused’s
lackadaisical attitude towards the subject property. Moreover,
considering his excuse that the subject properties were stolen from
his office drawer, it is perplexing that he did not even have this fact
reflected in a police blotter. Finally, accused did not present
anyone to confirm his story of theft. We thus agree with the
observation of the prosecution that the claim of theft, especially
since it is uncorroborated, is flimsy and self-serving and made
merely to negate criminal accountability under the law.
In Cimafranca v. Sandiganbayan,58 the Supreme Court

rejected as “difficult to believe” the accused’s version as to why he
57 We note that in Exhibit “2” – the report of the proceedings of the Board of Survey --
accused mentioned that an investigation into the alleged theft was conducted by one
SPO4 Manuel T. Palmere, Sr., the investigator of the Mambajao Police Station. SPO4
Palmere, Sr. apparently reduced his investigation in writing but accused did not have
said report identified, marked or offered in court which leads to the presumption that
evidence willfully suppressed would be adverse if produced. See Section 3(e), Rule 131
of the Rules of Court.
58 G.R. No. 94408, 14 February 1991, 194 SCRA 107.
was not able to immediately return the revolver and engine involved
in that case, thus:
“… the version of petitioner as to why he was not able to

immediately return the property, as correctly observed by the respondent
court, is difficult to believe. He failed to report the alleged loss of
government property to the proper authorities. While he claimed to have
reported the loss of the engine to the police, said matter was not reflected
in the police blotter. He presented an affidavit of P/Cpl Crispin Tubayan
confirming said report but petitioner did not present Tubayan as a
witness as the affidavit in itself is hearsay. And although petitioner also
testified that he reported the loss of the revolver to the Provincial
Governor, this fact was not even reflected in the affidavit of loss he
executed. Moreover, he did not ask nor did he present the Governor to
testify in order to confirm his statement.”
Equally untenable is accused’s argument that his payment of

the value of the subject properties puts him beyond the pale of the
law as it is doctrinal that restitution of the public funds or property
work only to mitigate the liability for malversation. 59 The payment
of the property malversed after the commission of the crime, does
not extinguish the criminal liability of the responsible public
officer.60
Having established accused’s liability for malversation of

public funds, we now determine the penalty to be imposed upon
59 Kimpo v. Sandiganbayan, et al., G.R. No. 95604, 29 April 1994, 232 SCRA 53, 62
citing El Pueblo de Filipinas v. Velasquez, 72 Phil. 98.
60 Peñanueva, Jr. v. Sandiganbayan, G.R. Nos. 98000-02, 30 June 1993, 224 SCRA 86
and the cases cited therein.
him keeping in mind that in malversation, the penalty is dependent
on the value of the public funds, money or property malversed. 61
The Information pegged the value of the subject properties at P

42,375.00. To prove said valuation, the prosecution presented PNP
Circular No. 0001-02 on the “Cost Valuation of PNP Issued and
Loaned Firearms” which prosecution witnesses SPO4 Chan and
Police Inspector Gallego identified in court and which was duly
marked and offered as Exhibit “A”. Therein, the cost of a 9mm
Beretta pistol is P 44,000.00 which is higher than what is indicated
in the Information. The discrepancy can be attributed to the fact
that said PNP circular is dated 2002 while the subject properties
were issued to accused much earlier, on 12 April 1999.
As a general rule, the cost valuation stated in the PNP Circular

would have been acceptable as, in fact, the Supreme Court in
Quiñon v. People62 used the cost valuation of the then Ministry of
Defense in establishing the value of the firearms malversed in that
case. However, in this case, as there is a discrepancy in the
valuation of the subject properties as indicated in the Information
and in the PNP Circular and considering the date of said PNP
Circular, we cannot accept the valuation therein at face value. This
61 Article 217, RPC; See also Diego v. Sandiganbayan, supra note 49 at 606-607.
62 G.R. No. 136462, 19 September 2002 389 SCRA 412.
is not to say that the prosecution failed to prove the value of subject
properties. It must be recalled that on 3 January 2002, accused
paid for the subject properties in full in the amount of P 40,650 as
evidenced by Exhibit “1”. Being accused’s own exhibit, he is bound
by it. Accordingly, pursuant to paragraph 4 of Article 217 of the
RPC, if the amount malversed exceeds P 22,000.00 the penalty
shall be reclusion temporal in its maximum period to reclusion
perpetua.
WHEREFORE, judgment is hereby rendered finding accused

Isidro T. Reyes GUILTY beyond reasonable doubt of the offense of
Malversation of Public Funds, as defined and penalized under
Article 217 of the Revised Penal Code, and favorably appreciating
the mitigating circumstance of full payment, after applying the
Indeterminate Sentence Law, hereby sentences him to suffer an
indeterminate penalty ranging from TEN (10) YEARS and ONE (1)
DAY of prision mayor as the minimum, to SEVENTEEN (17) YEARS,
FOUR (4) MONTHS and ONE (1) DAY of reclusion temporal, as the
maximum; to further suffer perpetual special disqualification; to
pay a fine of P 40,650 equal to the amount malversed and to pay
the costs of this action. No civil liability is awarded in view of the
full payment of the properties involved.
SO ORDERED.
ALEXANDER G. GESMUNDO
Associate Justice
WE CONCUR:
TERESITA J. LEONARDO- DIOSDADO M. PERALTA
DE CASTRO Associate Justice
Presiding Justice, Chairman
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 the Court’s Division.
TERESITA J. LEONARDO-DE CASTRO
Chairman, First Division
CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, and

the Division Chairman’s Attestation, it is hereby certified that the
conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the
Court’s Division.
TERESITA J. LEONARDO-DE CASTRO
Presiding Justice
Baril nawala, may kasong grave misconduct
Just this morning, a police officer called and consulted me regarding his problem. He said that
his firearm is missing because it was stolen by a robber who entered his house. The following are our
conversations:
PO3: Sir, may kaso akong grave misconduct. Pinapasumite na ako ng answer ng PNP. Nanakaw kasi
ang baril ko.
Me: Bakit nanakaw ang baril mo?
PO3: Umuwi po ako ng bahay. Nilagay ko ang sling bag ( na kung saan napapaloob yung baril) sa loob
ng dura box sa loob ng kuwarto namin. Bago kami matulog ni-lock ko naman ang pinto at bintana na
puwedeng daanan ng magnanakaw. Kaso, iyong sliding door namin, nasungkit iyong lock at nabuksan
ito. Pumasok ng kuwarto at nakuha ang sling bag ko.
Me: Hindi ka ba nagising man lang?
PO3: Hindi po Sir. Ni wala akong ingay na narinig sa loob ng bahay. Ano po Sir ang gagawin ko?
Natatakot po akong madismiss sa serbisyo. Tulungan niyo po ako.
Me: Hmmm.. Okey. Ganito. Makinig ka.
Hindi otomatik na komo nawala ang baril ng pulis may administrative at civil liability na. Ibig sabihin,
mali ang paniniwala na otomatik na mapaparusahan at magbabayad ang pulis na nawalan ng baril o
gamit pang-gobyerno.
Ito ang batas. Sa ilalim ng Section 73, PD 1445, walang liability ang empleyado ng gobyerno kung ang
dahilan ng pagkawala ng government property ay dahil sa “fire, theft, or other casualty or force
majeure force”.
Malinaw na kapag walang malisya o kapabayaan ang pagkawala ng gamit gaya ng baril walang liability
ang pulis. Mahigpit nga lamang ang requirement na kailangan, ang empleyado ay makapagbigay ng
report sa COA sa loob ng 30 araw kalakip ang kaniyang ebidensya. Pag-nagawa niya ito, wala siyang
civil liability at malamang abswelto rin siya sa administrative liability.
Very important. Please share. Like Facebook page Reynold Villania for PNP legal education
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naaambunan ng pasalubong
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Tulungan mo muna ang sarili mo, bayaran mo muna ang Future mo.
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Magsavings ka bago magregalo.
Mag invest ka bago mag pautang sa iba.
At huwag ka magpautang kapag niloloko at inuuto ka nalang ng mga nagpapakilalang kamag anak or
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Baka naman pwede pautang”
Huh kakafriend Request lang sayo tapos ang bungad pautang kaagad?
“Gising Pinoy”
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di ka naman marunong humawak ng pera at ayaw mong paglaanan na matutunan ang magpalago ng
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✅ Huwag mahiyang magsabi ng “No” kung alam mong Sa iyo pa lang kulang pa ang kinikita mo.
✅Huwag mahihiyang magsabi ng “No” sa mga taong kapag nakipag usap sa iyo at magpaparinig sayo
na sana kaawaan mo at pautangin mo pero panay post naman sa Facebook ng mga luho nila at
kasosyalan.
✅Tumulong ka sa mga Taong karapat dapat na tulungan at totoong nangangailang ng Tulong mo.
Yung deserving at alam mong di nila sasayangin ang tulong na ibigay mo. Yung makakabuti sa kanila
ang pagtulong mo.

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Counter Affidavit

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Republic of the Philippines )

I, Police Staff Sergeant Arnold Bautista Walican, a member of Philippine National

1. I am being investigated by the PRO3, RIDMD for an administrative

3. That I vehemently deny the aforementioned allegations as the instant charge

f. At around 3 PM on said day, the complainant belatedly arrived and asked me

6. The elements of dereliction of duty in the prosecution of offenses pursuant

7. Based on the following aforementioned facts and also that of the

9. Clearly, there is no dereliction of the duties of my office. I cannot be said to

15. Moreover, that in the undersigned respondent's almost nine years of

WHEREFORE, in view of the foregoing, it is respectfully prayed that the instant

Done this _____ day of _____________ 2019 at City of San Fernando,

SUBSCRIBED AND SWORN to before me this __________ day of ___________

Doc. No. ____________

G.R. No. 199271, October 19, 2016

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JEHAR REYES, Accused-

CONTRARY TO LAW.3 chanroblesvirtuallawlibrary

x x x [O]n 27 November 2002, at around 2:00 p.m., a buy-bust operation was

Accused-appellant was thereafter charged with violating Article 2, Section 5 of R.A.

Ruling of the RTC

The three plastic packs containing methamphetamine hydrochloride are ordered

In addition, the evidence the Prosecution presented, is complete to establish the

Ruling of the Court

PO1 Villahermosa further testified:

The importance of the chain of custody cannot be understated. As we have indicated

Was the chain of custody preserved in this case?

serious gap in the chain of custody.

The presumption of regularity of performance of official duty stands only when no

No pronouncement on costs of suit.

Sereno, C.J, Leonardo-De Castro, Perlas-Bernabe, and Caguioa, JJ., concur.

On this point, We rule that although respondent policemen continue to be

3 Glasses of Water + 1 Glass Plain Vinegar

20 to 30 minutes = 3 to 4 times daily

#61 Likas Lunas| Almoranas(hemorrhoids)

I, P03 Arnold Bautista Walican, a member of Philippine National Police and

3. That I vehemently deny the aforementioned allegations as the instant charge

f. At around 3 PM on said day, the complainant belatedly arrived and asked me

5. That due to aforementioned facts, I vehemently and categorically deny

6. The elements of dereliction of duty in the prosecution of offenses pursuant

7. Based on the following aforementioned facts and also that of the

9. Clearly, there is no dereliction of the duties of my office. I cannot be said to

12. Clearly, the aforementioned actions that I have undertaken cannot

15. Moreover, that in the undersigned respondent's almost nine years of

WHEREFORE, in view of the foregoing, it is respectfully prayed that the instant

Done this _____ day of _____________ 2019 at City of San Fernando,

SUBSCRIBED AND SWORN to before me this __________ day of ___________

Doc. No. ____________

[G.R. No. 143403. January 22, 2003]

FILONILA O. CRUZ, petitioner, vs. Hon. CELSO D. GANGAN, Dir.

While we commend the Commission on Audit for its diligence in

Premises considered, and conformably to the adverse recommendations of the

On Friday afternoon of January 15, 1999, petitioner went to the Regional

the diligence required in the custody of government properties. Thus,

Ruling of the Commission on Audit

Hence, this Petition. [6]

The Commission Proper committed grave abuse of discretion amounting to excess of

The Courts Ruling

The Petition is meritorious.

Negligence is the omission to do something which a reasonable man, guided upon

Negligence is want of care required by the circumstances. [9]

utilized with the diligence of a good father of a family. Extra-ordinary measures

proven. In the absence of any shred of evidence thereof, respondents gravely

accountability. We hold that such application be deemed as the notification of

Done this _ day of _________ 2019 at City of San Fernando,

SUBSCRIBED AND SWORN to before me this day of _

Done this _ day of _________ 2019 at City of San Fernando,

SUBSCRIBED AND SWORN to before me this day of _