You are on page 1of 53

Republic of the Philippines

~anbiganba!,an
Quezon City
***
FIFTH DIVISION

PEOPLE OF THE PHILIPPINES,


Plaintiff, Criminal Case No. 25940
-versus- For: Violation of Sec. 3(e)
ofR.A. 3019, as amended
ANTONIO DELA PENA BELICENA,
ULDARICO P. ANDUTAN, JR.,
PACIFICO R. CRUZ,
EMERITO G. GUBALLA,
Accused.
x----------------------------------------------------x
PEOPLE OF THE PHILIPPINES,
Plaintiff, Criminal Case Nos. 25941,
-versus- 25945, 25950, 25951, 25952,
25955,25956
ANTONIO DELA PENA BELICENA, For: Violation of Sec. 3(e)
ULDARICO P. ANDUTAN, JR., of R.A. 3019, as amended
PACIFICO R. CRUZ,
Accused.
x----------------------------------------------------x
PEOPLE OF THE PHILIPPINES,
Plaintiff, Criminal Case No. 25942
-versus- For: Violation of Sec. 3(e)
ofR.A. 3019, as amended
ANTONIO DELA PENA BELICENA,
ULDARICO P. ANDUTAN, JR.,
P ACIFICO R. CRUZ,
ESTER H. TANCO-GABALDON,
BELINDA P. TORRES,
HORACIO G. BORROMEO,
Accused.
x----------------------------------------------------x
PEOPLE OF THE PHILIPPINES,
Plaintiff, Criminal Case Nos. 25943, 25954
-versus- For: Violation of Sec. 3(e)
ofR.A. 3019, as amended
ANTONIO DELA PENA BELICENA,
ULDARICO P. ANDUTAN, JR.,
PACIFICO R. CRUZ,
ESTER H. TANCO-GABALDON,
Accused.
x----------------------------------------------------x
DECISION Page 2
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et at.
x-------- ---- -- ---- ---------------------- -- ------ ------- -- -------- -- ------ -- ------ ----- ---- -------------- ---- ---- ----- --x

PEOPLE OF THE PHILIPPINES,


Plaintiff, Criminal Case No. 25944
-versus- For: Violation of Sec. 3(e)
of R.A. 3019, as amended
ANTONIO DELA PENA BELICENA,
ULDARICO P. ANDUTAN, JR.,
PACIFICO R. CRUZ,
ANGEL O. JIMENEZ,
Accused.
x----------------------------------------------------x
PEOPLE OF THE PHILIPPINES,
Plaintiff, Criminal Case No. 25946
-versus- For: Violation of Sec. 3(e)
of R.A. 3019, as amended
ANTONIO DELA PENA BELICENA,
ULDARICO P. ANDUTAN, JR.,
PACIFICO R. CRUZ,
JOHN T. CUA,I
Accused.
x----------------------------------------------------x
PEOPLE OF THE PHILIPPINES,
Plaintiff, Criminal Case No. 25947
-versus- For: Violation of Sec. 3(e)
ofR.A. 3019, as amended
ANTONIO DELA PENA BELICENA,
ULDARICO P. AND UT AN, JR.,
PACIFICO R. CRUZ,
RONALD S. CASTILLO,
Accused.
x----------------------------------------------------x
PEOPLE OF THE PHILIPPINES,
Plaintiff, Criminal Case No. 25948
-versus- For: Violation of Sec. 3(e)
of R.A. 3019, as amended
ANTONIO DELA PENA BELICENA,
ULDARICO P. AND UT AN, JR.,
PACIFICO R. CRUZ,
DELFIN POONIM,
Accused.
x----------------------------------------------------x

I
I
Amended Information from John T. Chua to John T. Cua, per Motion to Admit Amended Information filed by the
prosecution on September 18,2001 (Records, Vo!. 6, pp. 188-208) which the Court granted in a Minute Resolution
dated September 21,2001 (Records, Vo!. 6, p. 209).
DECISION Page 3
Crirn. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
PEOPLE OF THE PHILIPPINES,
Plaintiff, Criminal Case No. 25949
-versus- For: Violation of Sec. 3(e)
of R.A. 3019, as amended
ANTONIO DELA PENA BELICENA,
ULDARICO P. ANDUTAN, JR.,
PACIFICO R. CRUZ,
JOEL IGNACIO,
Accused.
x----------------------------------------------------x
PEOPLE OF THE PHILIPPINES,
Plaintiff, Criminal Case Nos. 25953,25962
-versus- For: Violation of Sec. 3(e)
of R.A. 3019, as amended
ANTONIO DELA PENA BELICENA,
ULDARICO P. ANDUTAN, JR.,
PACIFICO R. CRUZ,
LILA DHAR SHARMA,
Accused.
x----------------------------------------------------x
PEOPLE OF THE PHILIPPINES,
Plaintiff, Criminal Case No. 25957
-versus- For: Violation of Sec. 3(e)
of R.A. 3019, as amended
ANTONIO DELA PENA BELICENA,
ULDARICO P. ANDUTAN, JR.,
PACIFICO R. CRUZ,
ANGEL CHUA,
Accused.
x----------------------------------------------------x
PEOPLE OF THE PHILIPPINES,
Plaintiff, Criminal Case No. 25958
-versus- For: Violation of Sec. 3(e)
of R.A. 3019, as amended
ANTONIO DELA PENA BELICENA,
ULDARICO P. ANDUTAN, JR.,
PACIFICO R. CRUZ,
SANJA Y DALMIA,
Accused.
x----------------------------------------------------x
PEOPLE OF THE PHILIPPINES,
Plaintiff, Criminal Case No. 25959
-versus- For: Violation of Sec. 3(e)
of R.A. 3019, as amended
ANTONIO DELA PENA BELICENA,
ULDARICO P. ANDUTAN, JR.,
PACIFICO R. CRUZ,
RAMON B. SANTOS,
Accused.
x----------------------------------------------------x
DECISION Page 4
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
PEOPLE OF THE PHILIPPINES,
Plaintiff, Criminal Case No. 25960
-versus- For: Violation of Sec. 3(e)
ofR.A. 3019, as amended
ANTONIO DELA PENA BELICENA,
ULDARICO P. AND UT AN, JR.,
P ACIFICO R. CRUZ,
EDGARDO C. OLANDEZ,
Accused.
x----------------------------------------------------x
PEOPLE OF THE PHILIPPINES,
Plaintiff, Criminal Case No. 25961
-versus- For: Violation of Sec. 3(e)
ofR.A. 3019, as amended
ANTONIO DELA PENA BELICENA,
ULDARICO P. AND UT AN, JR., Present:
PACIFICO R. CRUZ, Lagos, ob Chairperson,
EDGARDO C. OLANDEZ, Mendoza-Arcega and
Accused. Corpus-Maiialac, JJ.

Promulgated:

~Cf ~1..0 O~.u /


x---------------------------------------------------------------------------~=----x

DECISION

CORPUS - MANALAC, J.:

Accused ANTONIO DELA PENA BELICENA, Undersecretary,


Department of Finance (DOF); ULDARICO P. ANDUTAN, JR., Deputy
Executive Director of the One Stop Shop Inter-Agency Tax Credit & Duty
Drawback Center of DOF Manila ("DOF -Center"); PACIFICO R. CRUZ,
General Manager, Pilipinas Shell Petroleum Corporation ("PSPC"); EMERITO
G. GUBALLA, Assistant Manager, Nikko Textile Mills, Inc. ("Nikko");
ESTER H. TANCO-GABALDON, Vice-President-Finance of Fibertex
Corporation ("Fibertex"); Finance Manager of J & P Coats Manila Bay, Inc.
("J & P Coats") and representative of Manila Bay Spinning Mills, Inc. ("Manila
Bay Spinning"); BELINDA P. TORRES, Chief Accountant of Fibertex;
HORACIO G. BORROMEO, General Manager of Fibertex; ANGEL O.
JIMENEZ, General Manager, Scope Industries, Inc. ("Scope"); JOHN T. CUA,
Vice President, Fibrefill Manufacturing, Inc. ("Fibrefill"); RONALD S.
CASTILLO, General Manager, FLB International Fiber Corp. ("FLB")
DELFIN POONIM, President, San Pablo Lake Knitting Corp. ("SPLKC");
JOEL IGNACIO, General Manager, Spintex Int'!., Inc. ("Spintex"), LILA
DHAR SHARMA, General Manager, Indo Phils. Cotton Mills, Inc. ("Indo
Phils.") and Senior Vice-President-Finance & Commerce, Indo Phils. Textile,

J!I
DECISION Page 5
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et aJ.
x-----------------------------------------------------------------------------------------------------------------------x
Inc. ("Indo Phils. Textile"), ANGEL CHUA, General Manager, Jantex;
SANJA Y DALMIA, Vice President, Indophil Acrylic Manufacturing, Corp.
("Indophil Acrylic"); RAMON B. SANTOS, President, Phelps Dodge
Philippines, Inc. ("Phelps Dodge"); EDGARDO C. OLANDEZ, General
Manager, Mannequin International ("Mannequin") and FERNANDO
ORENDEZ, General Manager, Jibtex Industrial Corp. ("Jibtex") at the time
material to these cases are indicted for Violation of Section 3(e) of Republic Act
No. 3019, as amended, under separate Charge Sheets filed by the Office of the
Special Prosecutor, Office of the Ombudsman on April 11, 2000 docketed as
aforementioned.

The accusatory portion of the Information in Criminal Case No. 25940


alleged as follows:

The undersigned Ombudsman Prosecutors, Office of the Ombudsman, hereby


accuse ANTONIO P. BELICENA, ULDARICO P. ANDUTAN, JR., PACIFICO R.
CRUZ, and EMERITO G. GUBALLA, of violation of Section 3(e) of Republic Act
No. 3019, as amended otherwise known as the Anti-Graft and Corrupt Practices Act,
committed as follows:

That, during the period from 07 May 1997 to 03 July 1997, or for sometime
prior or subsequent thereto, in the City of Manila, Metro Manila, Philippines, and
within the jurisdiction of this Honorable Court, the aforementioned first two (2)
accused Antonio P. Belicena and Uldarico P. Andutan, Jr., both public officers, being
then the Assistant Secretary/Administrator, and Deputy Executive Director,
respectively, of the One Stop Shop Inter-Agency Tax Credit & Duty Drawback Center,
Department of Finance, Manila, while in the performance of their official functions
and acting with evident bad faith and manifest partiality, conspiring and confederating
with each other, together with accused Pacifico R. Cruz and Emerito G. Guballa,
General Manager of Pilipinas Shell & Petroleum Corp., and General Manager ofNikko
Textile Mills, Inc., respectively, did then and there, wilfully, unlawfully and criminally
recommend and approve the transfer of the following Tax Credit Certificates
purportedly issued to Nikko Textile Mills, Inc., to wit:
TCC No. Amount
6356 P 2,477,827
6588 2,557,310
6677 2,639,564
6747 2,679,961
6765 2,676,966

Total PI3,031,628

from Nikko Textile Mills, Inc., represented by accused Emerito G. Guballa, unto and
in favor of Pilipin as Shell & Petroleum Corp., represented by accused Pacifico R. Cruz,
without legal basis and proper/required documentation, thereby causing undue injury
and damage to the government in the aforestated amount and at the same time giving
unwarranted benefit, preference or advantage to the said private firms.

CONTRARY TO LAW.
DECISION Page 6
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
The Informations in Criminal Case Nos. 25942 to 25944; 25946 to 25949;
25954; 25957 to 25962 are similarly worded as abovementioned except as to the
following:
Crim. Name and Position of Date of Transaction TCC Nos./Amount TCC Issued to TCC transferred
Case No. the Accused Total Amt. to

25942 Antonio Belicena, June 24, 1996 to 4817 P1,164,557 Fibertex Pilipinas Shell
Uldarico Andutan, Jr., June 30, 1997 5550 2,596,201 Corporation and Petroleum
Pacifico Cruz, Ester H. 5839 1,473,837 ("Fibertex") Corp. (PSPC)
Tanco-Gabaldon 5908 371,210
(Finance Manager, 5915 1,184,750
Fibertex), Belinda P. 6235 1,153,016
Torres (Chief 6892 1,341,347
Accountant, Fibertex), 7104 540,225
Horacio G. Borromeo,
(General Manager, Total P9,825,143

Fibertex)

25943 Belicena, Andutan, Jr., November 13, 1996 3629 P1,115,224 J & P Coats Manila Pilipinas Shell
Cruz, Ester H. Tanco- to June 4, 1997 3999 703,200 Bay, Inc. ("J & P") and Petroleum
Gabaldon (Finance 5266 404,057 Corp. (PSPC)
Manager, J & P Coats 5283 710,840
Manila Bay, Inc.) 5284 753,816
5445 360,266
5462 838,490
5501 856,352
5504 437,363
7261 831,912

Total P7,Oll,520

25944 Belicena, Andutan, Jr., March 13, 1997 to 6363 P2,714,267 Scope Industries, Pilipinas Shell
Cruz, Angel O. Jimenez July 3,1997 6364 2,618,497 Inc. ("Scope") and Petroleu m
(General Manager, 6571 2,543,843 Corp. (PSPC)
Scope) 6590 2,814,196
6647 2,626,716
6672 2,623,803
6731 2,618,783

Total P18,560,105

25946 Belicena, Andutan, Jr., October 24, 1996 to 6786 P 2,000,000 Fibrefill Mfg., Inc. Pilipinas Shell
Cruz, John T. Cua (Vice April 1997 ("Fibrefill") and Petroleum
President, Fibrefill) Total P2,OOO,OOO Corp. (PSPC)

25947 Belicena, Andutan, Jr., December 18, 1996 6009 P6,006,031 FLB International Pilipinas Shell
Cruz, Ronald S. Castillo to April 30, 1997 6779 7,827,441 Fiber Corp. and Petroleum
(General Manager, FLB) ("FLB") Corp. (PSPC)
Total P13,833,472

25948 Belicena, Andutan, Jr., January 7 to 1759 Pl,462,229 San Pablo Lake Pilipinas Shell
Cruz, Delfin Poonim February 25, 1997 Knitting Corp. and Petroleum
(President, SPLKC) Total Pl,462,229 ("SPLKC") Corp. (PSPC)

25949 Belicena, Andutan, Jr., January 29, 1997 to 6204 P5,985,670 Spintex Int'l., Inc. Pilipinas Shell
Cruz, Joel Ignacio March 18, 1997 ("Spintex") and Petroleum
(General Manager, Total P5,985,670 Corp. (PSPC)
Spintex)

25953 Belicena, Andutan, Jr., November 26, 1996 5582 P7,292,278 Indo Phils. Cotton Pilipinas Shell
Cruz, Lila Dhar Sharma to February 11, 5736 6,636,925 Mills, Inc. ("Indo and Petroleu m
(General Manager, Indo 1997 5976 8,208,587 Phils.") Corp. (PSPC)
Phils.)
Total P22,137,790
DECISION Page 7
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
25954 Belicena, Andutan, Jr., August 21, 1996 to 4926 P1,518,124 Manila Bay Pilipinas Shell
Cruz, Ester H. Tanco- February 5, 1997 5210 2,860,578 Spinning Mills, and Petroleum
Gabaldon (Finance 5211 1,561,199 Inc. ("Manila Bay Corp. (PSPC)
Manager, J & P) Total PS,939,901 Spinning")

25957 Belicena, Andutan, Jr., January 7, 1997 to 6179 P 2,700,900 Jantex Phils., Inc. Pilipinas Shell
Cruz, Angel Chua February 1997 6183 2,700,063 ("Jantex") and Petroleum
(General Manager, 6311 5,401,013 Corp. (PSPC)
Jantex)
Total P1O,801,976

25958 Belicena, Andutan, Jr., January 9, 1997 to 6130 P1,977,717 Indophil Acrylic Pilipinas Shell
Cruz, Sanjay Dalmia June 30, 1997 6152 3,006,030 Mfg. Corp. and Petroleum
(Vice President, 6248 1,996,304 ("Indophil Corp. (PSPC)
Indophil Acrylic) Acrylic")
Total P6,980,OSl

25959 Belicena, Andutan, Jr., December 12, 1996 2929 P 1,862,501 Phelps Dodge Pilipinas Shell
Cruz, Ramon B. Santos to March 3, 1997 3238 11,286,795 Phils., Inc. and Petroleum
(President, Phelps 3991 5,227,729 ("Phelps Dodge") Corp. (PSPC)
Dodge) 4406 14,007,526

Total P32,384,SSl

25960 Belicena, Andutan, Jr., March 13, 1997 to 6287 P 2,613,217 Mannequin Pilipinas Shell
Cruz, Edgardo C. April 14, 1997 6358 2,559,352 International and Petroleum
Olandez (General 6389 2,542,371 ("Mannequin") Corp. (PSPC)
Manager, Mannequin) 6400 2,570,054

Total P1O,284,994

25961 Belicena, Andutan, Jr., January 29, 1997 to 6186 P 6,518,185 Jibtex Industrial Pilipinas Shell
Cruz, Fernando Orendez March 31, 1997 6306 4,027,042 Corp. ("Jibtex") and Petroleum
(General Manager, 6307 3,175,715 Corp. (PSPC)
Jibtex) 6535 7,994,818
6573 6,578,574

Total P28,294,334

25962 Belicena, Andutan, Jr. January 22, 1997 to 5673 P 3,819,639 Indo Phils. Textile, Pilipinas Shell
Cruz, Lila Dhar Sharma June 4,1997 6192 7,426,776 Inc. ("Indo Phils. and Petroleum
(Senior Vice-President- 6230 3,165,018 Textile") Corp (PSPC)
Finance & Commerce, 6466 5,240,544
Indo Phi Is. Textile) 6713 5,625,162
6901 3,364,726
6995 3,024,344

Total P31,666,209

On the other hand, the accusatory portion of the Information in Criminal


Case No. 25941 alleged as follows:

The undersigned Ombudsman Prosecutors, Office of the Ombudsman,


hereby accuse ANTONIO P. BELICENA, ULDARICO P. ANDUT AN, JR., and
PACIFICO R. CRUZ, of violation of Section 3(e) of Republic Act No. 3019, as
amended otherwise known as the Anti-Graft and Corrupt Practices Act,
committed as follows:

That, during the period from 18 December 1996 to 27 May 1997, or for
sometime prior or subsequent thereto, in the City of Manila, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the
aforementioned first two (2) accused Antonio P. Belicena and Uldarico P.

I
Andutan, Jr., both public officers being then the Assistant Secretary /
Administrator, and Deputy Executive Director, respectively, of the One Stop
Shop Inter-Agency Tax Credit & Duty Drawback Center, Department of
Finance, Manila, while in the performance of their official functions and acting; ;
DECISION Page 8
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
with evident bad faith and manifest partiality, conspiring and confederating with
each other, together with accused Pacifico R. Cruz, General Manager of Pilipinas
Shell & Petroleum Corp., did then and there, willfully, unlawfully and criminally
recommend and approve the transfer of the following Tax Credit Certificates
purportedly issued to Allstar Spinning, Inc., to wit:
TCCNo. Amount
6122 P 5,842,116.00
6181 5,877 ,579.00
6249 2,036,631.00
6250 5,877,616.00
6304 7,877,519.00
6619 6,166,621.00
6779 7,844,337.00
6780 7,827,441.00
6941 5,721,537.00
7021 7,802,852.00
7035 6,030,481.00
7039 7,739,858.00

Total P76,644,588.00

from Allstar Spinning Inc., unto and in favor of Pilipinas Shell & Petroleum
Corp., represented by accused Pacifico R. Cruz, without legal basis and
proper/required documentation, and using forged Deed of Assignment, thereby
causing undue injury and damage to the government in the aforestated amount
and at the same time giving unwarranted benefit, preference or advantage to the
said private firm (sic).

CONTRARY TO LAW.

The Informations in Criminal Case Nos. 25945, 25950, 25951, 25952,


25955 and 25956 contain the same allegations except as to the following:

Crim. Name and Date of Transaction TCC Nos.j Amount TCC Issued to TCC
Case Position of the Total Amt. transferred to
No. Accused

25945 Belicena, January 7, 1997 to 6188 P 6,013,340 Filstar Textile Pilipinas Shell
Andutan, Jr., January 24, 1997 6309 4,891,709 Industrial Corp. and
Cruz ("Filstar") Petroleum
Total P1O,905,049 Corp. (PSPC)

25950 Belicena, January 29, 1997 to 6307 P3,175,715 Alliance Thread Pilipinas Shell
Andutan, Jr., February 25, 1997 6306 4,027,042 Company, Inc. and
Cruz ("Alliance") Petroleum
Total P7,202,757 Corp. (PSPC)

25951 Belicena, January 7, 1997 to 6224 P2,035,717 Diamond Knitting Pilipinas Shell
Andutan, Jr., January 24, 1997 6303 6,105,321 Corp. ("Diamond") and
Cruz Petroleum
Total P8,141,038 Corp. (PSPC)

25952 Belicena, January 7, 1997 to 6251 P 6,094,342 Fiber Technology Pilipinas Shell
Andutan, Jr., February 25, 1997 6184 5,872,693 Corporation and
Cruz ("Fiber") Petroleum
Total Pll,967,035 Corp. (PSPC)
DECISION Page 9
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
25955 Belicena, December 18, 1997 7021 P7,802,852 Master Colour Pilipinas Shell
Andutan, Jr., to May 27, 1997 5639 5,261,603 System, Inc. and
Cruz 6185 5,566,285 ("Master Colour") Petroleum
5638 5,566,285 Corp. (PSPC)
6587 7,745,029

Total P31,942,054

25956 Belicena, December 18, 1996 7035 P 6,030,481 Express Colours Pilipinas Shell
Andutan, Jr., to May 27, 1997 5405 5,139,791 Industries, Inc. and
Cruz 6780 7,844,337 ("Express Colours") Petroleum
5638 6,257,219 Corp. (PSPC)
6474 4,418,998

otal P29,690,826

The Antecedents of the Cases

These cases arose from the controversial issuances by the DOF-Center of


various Tax Credit Certificates (TCCs) to listed private entities and thereafter
transferred/credited to Pilipinas Shell and Petroleum Corporation (PSPC) or the
Petron Corporation known as the "1990's Tax Credit Seam," which the late
Secretary of Finance, Salvador Enriquez, exposed sometime in 1998.
This expose'
triggered the conduct of fact-finding investigation by the
Fact-finding and Intelligence Bureau (FFIB) of the Office of the Ombudsman,
which eventually filed charges of Violation of RA No. 3019, Section 3(e) and U)
against public and private respondents including the accused herein, who
allegedly "conspired between and among themselves in defrauding and causing
undue injury to the government, in giving unwarranted benefits, advantage and
preference, through manifest partiality, evident bad faith and/or gross
inexcusable negligence, by approving, allowing, effecting and availing [of] the
benefits derived from the irregular and fraudulent transfer of [these TCCs] to
PSPC or Petron" docketed as OMB-0-99-2012 to 2034.
In a Resolution? dated March 27, 2000 approved by then Ombudsman
Aniano A. Desierto on April 5, 2000, it found a probable cause for violation of
RA No. 3019, Section 3(e) against the herein accused, Antonio P. Belicena,
Assistant Secretary, and Uldarico Andutan, Jr., Executive Director, One Stop
Shop Inter Agency Tax Credit and Duty Drawback Center, both of the
Department of Finance (DOF), as well as several private individuals in their
capacities as representatives of various private textile firms named below, as
allegedly, the TCC transfers were without legal basis/proper documentation
(Criminal Case Nos. 25940-25962) and/or through forged Deed of Assignment
(Criminal Case Nos. 25941, 25945, 25950, 25951, 25952, 25955, 25956, viz:
Nikko Textile Mills, Inc., represented by its General Manager
Emerito G. Guballa in the total amount of P13,031,628 (CC No. 25940);
Allstar Spinning, Inc. in the total amount ofP76,644,588 (CC No. 25941);
Fibertex Corporation, represented by Vice President Ester H Tanco-

2 Records, Vol. 1, pp. 71-123.


DECISION Page 10
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
Gabaldon, or Chief Accountant Belinda P. Torres, or General Manager
Horacio G. Borromeo, amounting to P9,825,143 (CC No. 25942); J & P
Coats Manila Bay, Inc., represented by its Finance Manager Ester H
Tanco-Gabaldon Gabaldon, amounting to a total of P7,011,520 (CC No.
25943); Scope Industries, Inc., represented by its General Manager Angel
0. Jimenez, amounting to PI8,560,105 (CC No. 25944); Filstar Textile
Industrial Corp., amounting to a total of PIO,905,049 (CC No. 25945);
Fibrefill Mfg., Inc., represented by its Vice President John T. Cua,
amounting to P2,000,000 (CC No. 25946); FLB International Fiber
Corp., represented by General Manager Ronald S. Castillo, amounting to a
total of P13,833,472 (CC No. 25947); San Pedro Lake Knitting Corp.,
represented by its President, Delfin Poonim, amounting to PI ,462,229 (CC
No. 25948); Spintex International, Inc., represented by its General
Manager Joel Ignacio, amounting to P5,985,670 (CC No. 25949); Alliance
Thread Co., Inc., amounting to a total of P7,202,757 (CC No. 25950);
Diamond Knitting Corp., amounting to a total of P8,141,038 (CC No.
25951); Fiber Technology Corp, amounting to a total of PI 1,967,035 (CC
No. 25952); Indo Phils. Cotton Mills, Inc., represented by its General
Manager LUa Dhar Sharma amounting to a total P22,137,790 (CC No.
25953); Manila Bay Spinning Mills, Inc., represented by the Finance
Manager of J & P Coats Manila Bay, Inc. Ester H Tanco-Gabaldon.
amounting to a total of P5,939,901 (CC No. 25954); Master Colour
System, Inc., amounting to a total ofP31 ,942,054 (CC No. 25955); Express
Colours, Inc., amounting to a total of P29,690,826 (CC No. 25956); Jantex
Phils., Inc., represented by its General Manager Angel Chua, amounting to
a total of PI0,801,976 (CC No. 25957); Indophil Acrylic Mfg. Corp.,
represented by its Vice President Sanjay Dalmia, amounting to a total of
P6,980,051 (CC No. 25958); Phelps Dodge Phils., Inc., represented by its
President Ramon B. Santos, amounting to a total of P32,384,551 (CC No.
25959); Mannequin International, represented by its General Manager
Edgardo C. Olandez, amounting to a total ofPI0,284,994 (CC No. 25960);
Jibtex Industrial Corp., represented by its General Manager Fernando
Orendez, amounting to a total ofP28,294,334 (CC No. 25961); Indo Phils.
Textile, Inc., represented by its Senior Vice-President-Finance &
Commerce, Sharma, amounting to a total ofP31,666,209 (CC No. 25962).

Proceedings before this Court

Out of the eighteen (18) accused in these cases, four (4) of whom remain
at-large, namely, Jimenez (CC No. 25944); Poonim (CC No. 25948); Ignacio
(CC No. 25949); and Dalmia (CC No. 25959). This Court has issued a standing
Order of Arrest' against them on July 6, 2000.

Accordingly, a Hold Departure Order' was issued on even date against


all the accused except Cua, who questioned the Information in Criminal Case
No. 25946 indicating the name "John T. Chua" instead of "John T. Cua"; and
Borromeo'' (CC No. 25942) who already died even prior to the filing of the case

J Records, Vo!. 2, p. 280.


4 Id., p. 281.
5 Died on September 2, 1996 (Records, Vo!. 2, p. 114).
DECISION Page 11
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et at.
x-------------------~---------------------------------------------------------------------------------------------------x
against him on April 11,2000. Santos" (CC No. 25959) and Castillo? (CC No.
25947) died during the pendency of these cases. Consequently, the cases against
them were dismissed on June 26,2000 (Borromeo)," February 8, 2013 (Santos),?
and August 11, 2017 (Castillo), \0 respectively.

On the other hand, Cruz, one of the main accused (CC No. 25940 to
25962) who posted!' his cash bail bond on April 14, 2000, was dropped from
the Informations per Resolution of this Court dated May 31, 2001.12 This is in
view of the Manifestation with Motion to Drop Accused Pacifico R. Cruz from
the Information filed by the prosecution on April 5, 2001 \3 following the
reinvestigation and/or reconsideration conducted by the Office of the
Ombudsman in these cases. Accordingly, the Hold Departure Order dated July
6, 200014 issued against him waslifted.

Accused Belicena posted bail" on April 25, 2000. He was arraigned on


July 12,2012 and pleaded NOT GUILTY to the charges against him.l'' However,
in view of Belicena's Omnibus Motion to Terminate, Suspend or Archive the
Cases Against Accused Antonio P. Belicena 17 filed on May 26, 2014, the
proceedings were suspended as to him (CC Nos. 25940 to 25962) per Minute
Resolution'" of the Court dated September 22, 2014. Belicena's deteriorating
mental faculties (dementia) as diagnosed by the doctors of the National Center
for Mental Health (NCMH) makes him incompetent to stand the rigors of Court
Trial. An update of Belicena's mental status was received by this Court on
March 11, 2015 through an Endorsement'? dated February 26, 2015 from the
National Center for Mental Health (NCMH) stating that Belicena as of February
18, 2015 is still suffering from dementia and remains incompetent to stand the
rigors of trial, which the Court noted in a Minute Resolution'? dated March 16,
2015.

Accused Sharma has a standing Order of Arrest" dated April 23, 2008
for his failure to comply with the directive of the Court to return to the
Philippines within fifteen (15) days from receipt of the Court's Resolution dated
September 15, 2007 per Minute Resolution'? dated March 18, 2008. His travel

6 Died on November 23,2012 (Records, Vol. 23, pp. 190-191); He was arraigned on October 24,2000 and pleaded
NOT GUILTY to the charge against him. (Records, Vol. 3, p. 117).
7 Died on January 19,2015 (Records, Vol. 33, p. 16); He was arraigned on July 12, 2002 and pleaded NOT GUILTY
to the charge against him. (Records, Vo!. 7, pp. 233-234).
8 Records, Vo!'2, p. 233; Borromeo was never arraigned.

9 Records, Vo/. 23, p. 200; Santos was arraigned on October 24, 2000 (Records, Vol. 3, p. 117).

/0 Records, Vol. 33, p. 11; Castillo was arraigned on July 12, 2002 (Records, Vol. 7, pp. 233-234).

11 Records, Vo/. 1, pp. 125-150.

/2 Records, Vo/. 5, pp. 217-219; Cruz was never arraigned.

/3 Id., pp. 121-161.

/4 Records, Vol. 2, p. 277.

/5 Records, Vol. 1, p. 182-186.

/6 Records, Vol. 7, pp. 233-234.

/7 Records, Vo!. 27, pp. 158-160.

/8 Id., pp. 315-320.

/9 Records, Vo!. 28, pp. 69-71.

20 Id., p. 72.

2/ Records, Vo!. 19, p. 229.

22 Id.,p. 150.
DECISION Page 12
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
bond and bail bond+' were ordered confiscated/" in favor of the government.
Similarly, accused Olandez (CC No. 25960) who posted" bail bond on April
24, 2000, has a standing Warrant of Arrest'? dated June 26, 2018 pursuant to
Minute Resolution'? dated June 18,2018. Olandez failed to submit proof that he
had already returned to the Philippines as required of him in the Minute
Resolution'[ dated May 31, 2018.

Accused Guballa.i? Orendez.'" Chua," and Andutan, Jr.,32 posted their


respective bail bonds to secure their temporary liberty.P They were arraigned
on April 30, 2002 (Guballa and Olandezj." and July 12, 2002 (Orendez, Chua
and Andutan, Jr.),35 respectively. All of them pleaded NOT GUILTY to the
charges posed against them.

As regards accused Torres and Gabaldon, they filed motions 36 for


reinvestigation stating therein that their rights to due process have been violated.
They further averred that they have already posted bail bonds to avert their
arrest." Gabaldon was arraigned on March 20, 200138 and Torres on July 12,
2002.39

As to accused Cua, on September 18, 2001, a Motion to Admit Amended


Information was filed by the prosecution in Criminal Case No. 25946 amending
the name of one of the accused from "John T. Chua" to "John T. Cua", which
was granted in a Minute Resolution dated September 21, 2001.40 Accordingly a
Hold Departure Order" and an Order of Arrest'? were issued against him on

23Records, Vo!. 2, pp. 195-201, He posted cash bail bond on June 20,2000 after his voluntary surrender on even date.
24Records, Vo!. 19, p. 275, Writ of Execution dated April 17, 2008 (travel bond); Vo!. 20, p. 246, Writ of Execution
dated January 5,2010 issued pursuant to Minute Resolution dated December 17,2009 (Vol. 19, p. 245); Vo!. 20, p.
280, Return of Writ of Execution dated January 13,2010.
25Records, Vo!. 1, pp. 166-171.
26Records, Vo!. 33, p. 470.
27Id., p. 451.
28Records, Vo!. 33, pp. 424-425.
29Records, Vo!. 1, p. 155; April 17, 2000.
30Id., p. 172; April 18, 2000.
31Id.
32Records, Vol. 2, p. 73, May 2, 2000.
33Records, Vol. 1, pp. 156-160 (Guballa, April 17, 2000); pp. 173-174; 175-176 Chua and Orendez's Personal
Information Sheets dated April 18, 2000, however, no copy of the surety bond is attached to the records, the only proof
that they availed of the said surety bond is the Notice dated March 16, 2001 sent by the Court to Pacific Union
Insurance Co., Inc.,found on Vol. 3, p. 272; said bail bond expired on April 17, 2002 which was extended on April
17,2003,foundon Vo!. 7,pp.146-147;); Vol.1,pp.182-186(Belicena,ApriI25,2000); Vo!.lpp. 74-79(Andutan,
Jr., May 2, 2000); pp. 196-201 (Sharma, June 20,2000).
34Records, Vol. 7, pp. 114-115.
35Id.,pp. 233-234.
36Records, Vo!. 1, pp. 323-324 (Motion for Reinvestigation in Criminal Case No. 25952, both Gabaldon and Torres);
pp. 326-327 (Motion for Reinvestigation in Criminal Case No. 25954, both Gabaldona and Torres).
37The recordsshow no copy of the surety bond, the only proof that they availed of one was the Notice of the Court dated
March 16, 2001 addressed to Philippine First Insurance Co., Inc. found on Vol. 3, p. 273.
38Records, Vo!. 3, pp. 309-310.
39Records, Vol. 7, pp. 233-234.
40Supra, Note 1(Amended Informationfrom John T. Chua to John T. Cua, per Motion to Admit Amended Information
filed by the prosecution on September 18,2001 (Records, Vo!. 6, pp. 188-208) which the Court granted in a Minute
Resolution dated September 21,2001 (Records, Vo!. 6, p. 209).
41Records, Vo!. 6, p. 225.
42Id., p. 252.
DECISION Page 13
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
September 28, 2001. Following his arrest.r' he immediately filed a surety bail
bond'" on October 23, 2001. He was later on arraigned" on January 3, 2002
and pleaded NOT GUILTY to the charge against him.

Meanwhile, various motions for reconsideration and/or reinvestigation


were filed'" which prayers for reinvestigation were favorably granted.t? by this
Court, thereby directing the Office of the Ombudsman to conduct the necessary
reinvestigation thereto.

Consequently on February 27, 2001, the Office of the Ombudsman


through Prosecutor Jesus A. Micael filed a Manifestation'" stating-

"{tJhat the reinvestigation and/or reconsideration of the above-entitled


cases have been completed and terminated by the Office of the Special
Prosecutor with the recommendation that the aforesaid criminal cases be
dismissed for lack of probable cause which recommendation was however
disapproved by the Honorable Ombudsman, Aniano A. Desierto, on
February 16,2001, as shown in the Resolution dated January 3,2001 x x
xx." Further stated is the fact "{tJhat the recommendation for the dismissal
of the above-entitled cases having been disapproved by the Hon.
Ombudsman with the exception of Accused Pacifico Cruz, as
recommended by the Special Prosecutor, the prosecution of the rest of the
accused should now proceed; x x x x"

On March 21, 2001, accused Andutan, Jr., filed a Manifestation 49


informing the Court that he filed with the Office of the Ombudsman a Motion
for Partial Reconsideration in view of the said office's Resolution dated
February 16, 2001 which this Court noted'" on March 26, 2001. Motions for
reconsideration.F' questioning the same resolution were likewise filed by
accused Orendez, Castillo and Chua on March 14, 2001 and accused Belicena

43 Id., p. 303.
44 Id., p. 304-307.
45 Id., p. 382.

46 Records. Vol. 1, pp. 187-411 (Cua's Omnibus Motion: 1. To Defer Issuance of Arrest Warrant; 2. To Dismiss/ Quash;

and/orJ. To Order Re-investigation [April 19, 2000]); Id., pp. 412-434 (Guballa 's Motion for Reinvestigation and/or
Motion for Reconsideration)[ApriI28, 2000); Records. Vol. 2, pp. 83-84; 101-102 (Castillo's Motion for Preliminary
Investigation [May 3, 2000); Urgent Supplemental Motion [May 5, 2000]); Id., pp. 85-86; 99-100 (Chua 's Motion for
Preliminary Investigation [May 3, 2000); Urgent Supplemental Motion [May 5, 2000]); Id., pp. 87-88; 103-104
(Orendez's Motion for Preliminary Investigation [May 3, 2000); Urgent Supplemental Motion [May 5,2000]); Id.,
pp. 136-148 (Castillo's Motion for Reconsideration and/or Reinvestigation [May 22, 2000); Id., pp. 149-161
(Orendez's Motion for Reconsideration and/or Reinvestigation [May 22, 2000); Id., pp. 162-176 (Castillo's Motion
for Reconsideration and/or Reinvestigation [May 22, 2000); Id., pp. 206-226 (Sharma's Omnibus Motion for
Reinvestigation, suspension of proceedings and withholding of issuance of warrant of arrest); Id., pp. 237-254
(Belicena's Motion for Reconsideration [July 4, 2000]); Id., pp. 258-272 (Andutan, Jr. 's Motion for Partial
Reconsideration [July 5,2000]); Records. Vol. 3, pp. 71-74 (Castillo's Supplement to the Motion for Reconsideration
and/or Reinvestigation [September 25, 2000); Id., pp. 75-78 (Chua's Supplement to the Motionfor Reconsideration
and/or Reinvestigation [September 25, 2000); Id., pp. 79-83 (Orendez's Supplement to the Motionfor Reconsideration
and/or Reinvestigation [September 25,2000].
47 Records, Vol. 2,pp. 111-112;p. 117;pp. 292-294. ~
48 Records, Vol. 3, pp. 214-254..

49 Records, Vol. 4, pp. 70-406.


50 Id., p. 407.
A )

(VI
51 Records, Vot. 5, pp. 73-94 (Orendez); pp. 96-118 (Castillo); pp. 168-194 (Chua); pp. 411-418 (Belicena).
DECISION Page 14
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
on May 25, 2001 with the Office of the Ombudsman. The same however, were
denied by the same office in a Joint Resolution= dated May 13, 2002 for lack of
merit. Thus, on June 19,2002, the prosecution filed a Manifestation= informing
the Court of the said denial and manifesting that the cases may now be set for
arraignment and trial which was noted in a Minute Resolutiori" dated June 27,
2002.

The parties agreed that these cases were to be tried jointly per Order?
dated April 30, 2002. Pre-trial briefs'" were accordingly filed by the accused.
The prosecution on the other hand, separately filed the corresponding Pre-trial
Briefs for each cases. 57 Considering the number of cases and the accused
involved herein, various preliminary conferences'" followed.

The Pre-trial proceedings ensued on October 8, 2003, October 14, 2003,


November 21, 2003, January 16, 2004 and March 12, 2004, July 23, 2004 and
April 30, 2008 resulting in the issuance of Pre- Trial Orders'? on even dates. A
Supplemental Pre-Trial Order'" dated July 23, 2004 was issued in so far as
Gabaldon's documentary exhibits were concerned. Another Supplemental Pre-
Trial Order 61 was issued on April 30, 2008 covering the prosecutions
documentary exhibits in Criminal Case Nos. 25955 to 25961.

Trial on the merits ensued.

Prosecution Evidence

The prosecution presented as evidence the testimonies of the following

52 Records, Vol. 7, pp. 201-202.


53 Id., pp. 199-200.
54 Id., p. 206.

55 u., p. 116.

56 Id., pp. 99-103 (Cua, April 26, 2002); Id., pp. 227-230 (Andutan, Jr., July 12, 2002); Id., pp. 345-389 (Santos, July
18,2002); Id., pp. 390-397 (Gabaldon, Crim. Case No. 25942, July 23,2002); u, pp. 398-402 (Gabaldon, Crim.
Case No. 25943, July 23,2002); Vol. 9. pp. 320-323 (Belicena, June 24,2003, Crim. Case No. 25943); Id., pp. 324-
327 (Belicena, June 24,2003, Crim. Case No. 25944); Id., pp. 328-331 (Belicena, June 24,2003, Crim. Case No.
25959); Vo/. 11. pp. 425-524 (Andutan, Jr., November 20, 2003); Vo/. 12, pp. 382-385 (Guballa, February 27,
2004); Id., pp. 386-389 (Olandez, February 27,2004).
57 Records, Vol. 7,pp. 238-242 (Crim. Case No. 25940); pp. 242- 247 (Crim. Case No. 25941); pp. 248-242 (Crim.

Case No. 25942); pp. 253-257 (Crim. Case No. 25943); pp. 258-262 (Crim. Case No. 25944); pp. 263-266 (Crim.
Case No. 25945); pp. 267-270 (Crim. Case No. 25946); pp. 271-275 (Crim. Case No. 25947); pp. 276-279 (Crim.
Case No. 25948); No pre-trial brieffiled (Crim. Case No. 25949); pp. 280-284 (Crim. Case No. 25950); pp. 285-289
(Crim. Case No. 25951); pp. 290-294 (Crim. Case No. 25952); pp. 295-299 (Crim. Case No. 25953); pp. 300-304
(Crim. Case No. 25954); pp. 305-309 (Crim. Case No. 25955); pp. 310-314 (Crim. Case No. 25956); pp. 315-319
(Crim. Case No. 25957); pp. 320-324 (Crim. Case No. 25958); pp. 325-329 (Crim. Case No. 25959); pp. 330-334
(Crim. Case No. 25960); pp. 335-339 (Crim. Case No. 25961); pp. 340-344 (Crim. Case No. 25962).
58 Records, Separate folder entitled: Preliminary Conferences. The dates are asfollows: May 24, 2016; May 25, 2016;
June 24,2016; July 18,2016; August 8,2016; August 22,2016; August 26,2016; September 2,2016; September 30,
2016; October 14,2016; October 21,2016; November 4, 2016; November 17,2016; November 24,2016; January 23,
2017; February 10, 2017; February 24, 2017.

I
59 Records, Vo/. 12, pp. 68-75 (Pre-Trial Order (Partial) dated October 8,2003); Id., pp. 76-166 (Partial Pre-Trial

Order dated October 14, 2003); Id., pp. 173-A-174 (Order dated November 21, 2003); Id., pp. 296-297 (Order dated
January 16,2004); Vo/. 13, pp. 305-313 (Pre-Trial Order dated March 12, 2004). ~
60 Records, Vo!. 15,pp. 102-282.

61 Records, Vo/. 19, pp. 193-214.


A)
r
DECISION Page 15
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
witnesses: (1) Bimal Chand Bhandari, an Indian textile engineer with specialty
in knitting machinery; (2) Rodolfo Domingo Del Castillo, Jr., a liaison officer
from 1987 to 2000 in Mannequin Garments Corporation and Scope Industries;
(3) Lorna Briones Bhandari, a businesswoman, wife of prosecution witness
Bimal Chand Bhandari; (4) Gerardo, R. Florendo, Division Chief of the Large
Taxpayers Audit and Investigation Division of the Bureau of Internal Revenue;
(5) Atty. Elena D. Barcenal, Graft Investigation and Prosecution Officer of the
Office of the Ombudsman, who conducted the fact finding investigation of these
cases; (6) Felix Tan Chingkoe, a businessman who has absolute and beneficial
ownership of28.57% of the outstanding capital stock and equity of the following
companies: (a) Allstar Spinning, Inc. (CC No. 25941), (b) Filstar Textile
Industrial Corporation (CC No. 25945), (c) FLB International Corp. (CC No.
25947), (c) Spintex International, Inc. (CC No. 25949), (d) Alliance Thread Co.,
Inc. (CC No. 25950), (e) Diamond Knitting Corporation (CC No. 25951), (t)
Fiber Technology Corporation (CC No. 25952), (f) Master Colour Systems, Inc.
(CC No. 25955), (g) Express Colours Industries, Inc. (CC No. 25956), (h) Jantex
Philippines, Inc. (CC No. 25957) and (i) Jibtex Industrial Corporation (CC No.
25961). These companies were allegedly utilized by spouses Faustino and
Gloria Chingkoe who were then officers of these companies, as fronts and
dummies in filing fictitious and fraudulent tax credit claims with DOF-Center.

Bimal Chand Bhandari, a witness in Criminal Case Nos. 25944 and


25960, testified that he was an employee of Messes Karlmayer Textile Machine
Fabrics from 1965 to 1974 or 1975;62that he trained in Knitting Technology with
Messes Karlmayer Textile Machine Fabrics in West Germany from 1962 to
1964,63 In 1970, he was sent to the Philippines to install, operate, put designs and
run machines, and to train people of various textile companies, 64 among which
were Mannequin Garments, Inc. and Scope Industries." He stated that the
knitting machines installed in Mannequin International Corporation (formerly
Mannequin Garments, Inc.) and Scope Industries were Circular Knitting
Machines, which are exclusively powered by electricity; that the machines do
not use petroleum products or bunker oi1.66 He supervised the maintenance of the
machines for about four (4) years," during which the machines did not use
petroleum products or bunker oi1.68Likewise, he claimed that Melchor Tan and
accused Olandez are the President and the General Manager of Mannequin
International, respectively. 69

Rodolfo Domingo Del Castillo, Jr., a witness in Criminal Case Nos.


25944 and 25960, testified that he worked as a liaison officer at Mannequin
Garments Corporation and Scope Industries from 1987 to 2000. As a liaison
officer, he was authorized to represent the companies before several government

62 TSN dated September 16,2004, p. 31.


63 Id., p. 28.
64 Id., pp. 34, 38.

65 u, pp. 40-42. ~
66 Id.

67 Id., p. 45.
68 Id.

69 Id., p. 40. I
DECISION Page 16
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
offices such as the BIR.70He corroborated the testimony of Mr. Bhandari that the
knitting machines used by Mannequin International and Scope Industries were
powered by electricity and that they do not use petroleum products." He testified
that Melchor Tan was the Chairman of the Board of Mannequin International,
who also ran Scope Industries; that accused Olandez was the General Manager
of Mannequin International." As liaison officer, he would ask for Tan's signature
in connection with the companies' transactions with various government offices.
According to him, Tan also used the alias "Angel Jimenez.'?' He testified that it
was Tan who signed above the name "Angel Jimenez" in the Deed of
Assignment" dated March 13, 1997.75On cross examination, he clarified that he
said that it was Tan who signed the Deed of Assignment because of his familiarity
with the latter's signature, but not because he actually saw him sign that
particular document."

Lorna Briones Bhandari, witness in Criminal Case Nos. 25944 and


25960, corroborated the testimony of witnesses Mr. Bhandari and Castillo. She
is a businesswoman, wife of prosecution witness Bimal Chand Bhandari and
second cousin of Melchor Tan who according to her, uses the alias name "Angel
Jimenez" among other aliases as "Richard Noriega" and "Sherwin Alcoriza".

Atty. Elena D. Barcenal, Graft Investigation and Prosecution Officer of


the Office of the Ombudsman, a common witness in all of these cases, testified
that she has been with the Office of the Ombudsman since August 27, 1996.77
That she investigated cases assigned to her for case build Up78and sometimes
acted as eo-prosecutor for legal affairs." Sometime in 1999, a panel was created
to investigate the alleged "60 Billion DOF tax credit scam?" She was designated
as one of the investigators 81of the cases involving Caltex, PSPC, Chingkoe
Group of Companies and other small garment firms."

In the course of her investigation, she requested for the production of


documents pertinent to the transfer of tax credits" and then submitted the Fact
Finding Report 84dated September 22, 1999, containing her findings and

70 TSN dated February 3, 2005, p. 20.


71 Id., pp. 20-26.
72 Id., p. 27.

73 Id., pp. 27-28.

74 Exhibit "H" in Criminal Case No. 25960.

75 TSN dated February 3, 2005, p. 28.

76 TSN dated May 12,2005, pp.26-27.


77 TSN dated August 10,2006, pp. 16-17.

78 Id., pp. 16-17.

79 Id.

80 Id., p. 17.
81 Id.

82 Id., pp. 17-18.

83 Id., pp. 18-19.

84 Marked as Exhibit "T'for Criminal Case No. 25940; "N'tfor Criminal Case No. 25941; "H'ifor Criminal Case No.

25942; "K"for Criminal Case No. 25943; "P"jor Criminal Case No. 25944; "C"for Criminal Case No. 25945; "B"
for Criminal Case No. 25946; "H'tfor Criminal Case No. 25947; "C'for Criminal Case No. 25948; "B'tfor Criminal

Ij
Case No. 25949; "E'tfor Criminal Case No. 25950; "E'ifor Criminal Case No. 25951; "C'tfor Criminal Case No.
25952; "H"for Criminal Case No. 25953; "H"/or Criminal Case No. 25954; "D"for Criminal Case No. 25955; "E"
for Criminal Case No. 25956; "D"fr Criminal c."
No. 25957; "B" for Criminal CaseNo. 25958; ''E''fr Cri-;
DECISION Page 17
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
conclusions." She identified these documents which she gathered and examined
pertinent to each of these cases.t"

In her Fact Finding Report, Atty. Barcenal explained that the transfers of
tax credits from the garment firms to PSPC were of doubtful validity, citing
Article 21 of the Omnibus Investments Code of 1987, as amended, requiring the
transferee ofTCCs to be a supplier of domestic raw material or component of the
registered activity or products of the garment firms.f? The Memorandum of
Agreement dated August 29, 1989 between the BOI and DOF implementing the
transferability and negotiability of TCCs under Art. 21 of the Omnibus
Investments Code provides that "the transferee should be a BOI-registered firm
which is a domestic capital equipment supplier or a raw material and or
component supplier of the transferor." She asserted that PSPC could not be
considered a supplier of raw materials used by the garment firms because of the
remote connection between the latter's registered activity with the products
supplied by the former. She further stated that based on their line of products, the
garment firms did not use bunker fuel.

Additionally, she reported that the transfer of tax credits must not involve
a consideration being a privilege granted to BOI registered firms. In these cases,
however, she concluded that the transfers of TCCs were made for a valuable
consideration based on the fact that the deeds of assignment were not supported
by supply agreements or delivery receipts." The BOI procedure in granting the
transfer of TCC requires the transferor to submit the following requirements in
the processing thereof, which allegedly were not complied with, viz:

(1) Deed of Assignment duly notarized; (2) Supply Agreement


duly notarized; (3) Purchase Order; (4) Delivery Receipts and Invoices;
(5) Secretary Certificates of both transferor and transferee; (6) Original
and Xerox copy ofthe TCC; (7) Original copy ofBOC and BIR clearances;
(8) BOI Certificate of Registration; and (9) Assignor's latest Audited
Financial Transactions.

The transfers allegedly did not adhere to these requirements: (1) One-year
track record of supply equivalent to 85% of the value of the tax credit to be
transferred; (2) Purchase Order of at least 85% of the value of tax credit to be
transferred (based on the delivery receipts for materials/supplies); (3) Supply
contract stipulating that the consideration for supply consist wholly or in part of
the tax credit being transferred. On her conclusion that the DOF -Center failed to
require the garment firms to submit mandatory requirements, Atty. Barcenal

Case No. 25959; "N" for Criminal Case No. 25960; "D" for Criminal Case No. 25961; "H" for Criminal Case No.
25962.
85 TSN dated August 10, 2006, p. 22.
86 TSN dated December 7,2006, TSN dated September 10,2007, TSN dated Apri/19, 2007, TSN dated August 16,
2007, TSN dated September 3, 2007, TSN dated September 11, 2007, TSN dated December 6, 2007, TSN dated
January 16, 2008, TSN dated May 6, 2008.
87 TSN dated May 7, 2008, pp. 21-22.

88 Id., pp. 21-44.


DECISION Page 18
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
clarified that her investigation was limited to the documents submitted to her by
the Bureau of Internal Revenue (BIR) and noting therefrom that there were
missing documents to support the approval of the transfers. However, she
confirmed that PSPC was registered with the BOI.89

On cross-examination, 90by Atty. Alikpala, counsel for Torres and


Gabaldon, Atty. Barcenal admitted that she concentrated merely on the
documents submitted by the BIR to their office; that she did not ask from the
other personnel at the Office of the Ombudsman whether the documents which
she examined were the only documents pertinent to the TCCs subject of these
cases." However, she asserted that Atty. Estrella Martinez, then officer-in-charge
at the BIR, told her that there was non-compliance with the mandatory
requirements by the DOF-Center. As explained to her by Atty. Martinez, each
tax credit was assigned in a particular docket or a folder, where all documents
required for transfer/assignment of TCCs were filed;" thus, she claimed that the
documents contained in each docket were the only documents submitted by the
Center to the BIR.93She likewise admitted that she was not present when said
documents were filed with the DOF-Center of the Department of Finance (DOF)
nor did she see the documents that were filed with it. Additionally, she admitted
that she was not present when the documents that she examined were transferred
from one government office to another prior to being transferred to the Office of
the Ombudsman."

On cross-examination by Atty. Acoymo, counsel for Guballa and


Olandez," she reiterated that she only relied on the documents submitted to her
during her fact-finding investigation.» She did not interview any of the accused
as well as any officials of the private corporations because of the policy
prohibiting investigators to interview would-be respondents when conducting
fact-finding." She never met accused Guballa and Olandez."

On cross-examination by Atty. Rigoroso, counsel for Orendez, Chua and


Castillo,» Atty. Barcenal identified and authenticated a Fact-Finding Report'P"
dated September 5, 2001,101 where accused Chua and Orendez were named
among the persons whose signatures had been forged as determined by the
National Bureau of Investigation.w She admitted that she does not personally

89 TSN dated May 13, 2007, pp. 7-9.


90 Id., pp. 11-19.

irJ
91 Id.

92 Id., p. 13.

93 Id.

94 Id.

95

96
Adopted by Atty. Rigoroso, Atty. F1aminiano.
TSN dated May 13,2009, pp. 26-27.
97 Id.

98 Id.
/
99 Adopted by Atty. F1aminiano.

lOO Exhibit "1" for accused Chua and Orendez in Criminal Case Nos. 25957 and 25960.

101 TSN dated May 13, 2009, pp. 31-32.

102 Id., pp. 34-35.


DECISION Page 19
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
know and is not familiar with the signatures of accused Orendez, Chua and
Castillo.P"

On cross-examination by Atty. Flaminiano, counsel for accused Belicena,


Atty. Barcenal testified that she interviewed Mr. Salanga and Mr. Hainsen, then
incumbent officers at the DOF -Center, although they were not yet with the DOF-
Center when the alleged anomalies were supposedly committed.i=

On cross-examination by Atty. Martinez, counsel for accused Chua, she


admitted that she did not consider Fibrefill Phil. Manufacturing Corporation's
Letter Request!" to the DOF-Center dated December 13, 1996.106She, however,
stated that even if the said letter was considered, her conclusion would be the
same. 107She denied having seen a Certification allegedly executed by one
Alberto Salanga to the effect that the transfer of TCC No. 001903 was based on
FMI's purchases of oil products from PSPC.108

On cross-examination by Atty. Go, counsel for accused Sharma, Atty.


Barcenal reiterated that she based her report on the documents submitted to her.

On cross-examination by Atty. Lomibao, counsel for accused Santos,


Atty. Barcenal stated that she did not ask for other documents from other
government agencies. 109She admitted that she did not visit the plant site ofPhelps
Dodge Philippines, Inc.11O

On cross-examination by Atty. Santos, counsel for accused Andutan, Jr.,


Atty. Barcenal explained that the documents she examined were submitted by
the BIR in response to a subpoena. I11However, she has no copy of the
subpoena.!v She testified that she did not consider it necessary to verify the
genuineness of the documents since they came from the BIR.113She also admitted
not having received any document from the DOF -Center.!= She reiterated her
statement that, as a matter of policy, officers conducting fact-finding
investigations are not allowed to require the subject of an investigation to
comment. They only gather evidence, testimonial or documentary. 115She
testified that, under the E.O. No. 226 or the Omnibus Investment Code, the
transferee of the tax credit must be a BOI registered enterprise and a supplier of
domestic capital equipment, or raw material and/or component supplier of the

/03

104
TSN dated May 13, 2009, p. 39.
Id., pp. 16-17.
/05 Exhibit "l-B't for accused Cua in Criminal Case No. 25946.

106 TSN dated May 14,2009, pp. 19-20.


Ir
107 Id., pp. 19-20.

108 Id., pp. 23-24.

109 TSN dated August 3, 2009, p. 7.

110 Id., p. 8.

III TSN dated August 4, 2009, p. 41.

112 u, p. 42.
I
IIJ Id., pp. 55-61.

1/4 Id.

115 TSN dated August 25,2009, pp. 12-13.


DECISION Page 20
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
transferor.!" She admitted that, on their face, there was nothing irregular about
the documents which she gathered and examined during her fact-finding
investigation and which she identified during the direct examination. 117She
clarified that the said documents were not the bases of her conclusion that the
transfer ofTCCs from the garment firms to PSPC were irregular.!" and that these
documents only proved the consummation of the transfer. 119

Gerardo R. Florendo, a common witness in all of these cases, testified


that he joined the BIR as a Revenue Examiner in 1976.120In 1997 until January
or February 1998, he was the Revenue District Officer for South Makati.?' As
Revenue Officer, he was tasked to implement all internal revenue laws and
regulations, including collection of Internal Revenue.'>

Florendo explained the Authority to Accept Payment for Excise Taxes


(AT APET) application process. The taxpayer accomplishes a pre-numbered BIR
form, indicating therein the amount of taxes to be paid and the mode of
payment-whether the taxes would be paid using Tax Credit Certificates (TCCs)
or Tax Debit Memos (TDMs). 123 In case the amount of tax liability is higher than
the value of the TCCs or TDMs, the balance will be paid in cash. 124These
documents have to be presented to the district office.'> The TDMs are issued by
the Collections Program Division of the BIR National Office, which is also the
office assigned to verify the genuineness of TCCs.126 The TDMs and the
ATAPETs are submitted to the revenue district for final signature before it is
presented to the bank as payment for taxes. 127

Florendo recalled having issued several ATAPETs in favor of PSPC when


he was still a Revenue District Officer. 128He confirmed that he saw some
documents before he signed the ATAPETs, 129such as Tax Credit Certificates.'>
However, he testified that he did not see Deeds of Assignment. 131In the course
of his direct testimony, he identified the documents which he saw before he
signed the ATAPETs pertinent to these cases.

116 Id., pp. 16-17.


117 TSN dated February 24, 2010.
118 Id.
119 Id.

120 TSN dated March 20,2006, pp. 12-13.


121 Id., p. 13.
122 Id., p. 14.

123 Id., p. 32-34.

124 Id., pp. 32-33.

125 Id., p. 33.

126 Id., p. 34.

127 Id.

128 Id., p. 36.

129 TSN dated March 21, 2006, p. 6.

130 Id., p. 7.

131 Id., p. 7.
DECISION Page 21
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
On cross-examination, Florendo stated that he does not personally know
accused Orendez, Chua, Castillo,'" Santos,'" Guballa, Olandez,'> Sharma.'> He
likewise stated that at the time when he was Revenue District Officer for South
Makati, he had no personal dealings with accused Belicena and Andutan.'>
According to him, the issuance of ATAPETs is more of a ministerial function,
that is, they check the correctness of the computation and then sign the AT APETs
if the computation is correct.'> On re-direct examination, Florendo stated that the
person transacting business with his office is usually a representative of the
taxpayer which, in this case, was PSPC or Petron Corporation.'>

The testimony of Me Ichor Ramos, a common witness in all of these cases,


was dispensed with upon stipulation by the parties that the witness could identify
the TDMs pertinent to these cases and that the signature appearing above the
name "Melchor Ramos" in each of the TDMs is his signature.i>

Felix Tan Chingkoe, a common witness in Criminal Case Nos. 25941,


25945,25947,25949,25950,25951,25952,25955, 25956, 25957, and 25961,
a businessman, claimed that he had been engaged in the business of textile,
dyeing, finishing and spinning from 1980 up to around the 90S.140 During this
period, Mr. Faustino and he owned several companies: Allstar Spinning Inc.,
Filstar Textile Industrial Corporation, FLB International Corporation, Spintex.
International Corporation, Alliance Thread Company, Inc., Diamond Knitting
Corporation, Fiber Technology Corporation, Master Colour Systems, Inc.,
Express Colour Industries, Inc., Jantex Philippines, Inc., Jibtex Industrial
Corporation. 141Sometime in 1998, DOF invited him to be a resource person of
Task Force 156 in connection with the alleged tax credit scam.i= At that time, he
was no longer connected with the aforementioned companies. 143 When he
appeared before the DOF, he was presented with documents, including five
hundred seventy-three (573) TCCs issued to the said companies.!" He further
testified that he had worked with Task Force 156 for almost three years during
which he had gone through certain documents, including the TCCs.145

Chingkoe identified the documents that were presented to him when he


appeared before the DOF. In the course of his direct testimony, the parties
stipulated that the documents presented for identification were the same

IJ2 TSN dated October 12, 2010, p. 9.


IJJ Id., p. 10.
IJ4 Id., pp. 11-15.

135 TSN dated October 27,2010, p. 6.

IJ6 Id., pp. 7-10.

IJ7 Id., pp. 7-10.

IJ8 Id., pp. 11-14.

IJ9 Records, Vo!. 21, pp. 263-279; Id. at 283 (Order dated November 9,2010).

140 TSN dated August 10,2011, p. 18.

141 Id., pp. 30-33.

142 Id., pp. 43-45.

143 Id.

144 Id.

US/d.
DECISION Page 22
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
documents that were presented to him when he appeared before the DOF, and
that was the first time that he saw the said documents.!" He identified the Joint
Affidavit= dated June 18,2004 which he and his wife, Rosita Chingkoe, executed
and made part of his direct testimony.w

Prosecution's Formal Offer of Documents


On September 28, 2012, the prosecution filed its Consolidated Formal
Offer of Exhibits for the Prosecution. 149 Accordingly, accused filed their
respective comments/opposition'" thereto. Another Consolidated Formal Offer
of Exhibits for the Prosecution'?' was filed on February 25, 2013. Accused
Gabaldon and Torres filed their opposition 152 thereto on March 7, 2013. Accused
Chua, Orendez and Castillo jointly filed their comment'v' thereto on March 7,
2013. Andutan, Jr. filed his comment/opposition'<' thereto on April 24, 2013.
Per Minute Resolution'P dated August 28, 2013. The Court resolved to ADMIT
all the exhibits offered by the prosecution over the objections of the accused.

Demurrers to Evidence
Various motions 156 for leave to file demurrer to evidence were filed by
herein accused which were all denied'V on the ground that the arguments raised
therein are matters of defense best threshed out during the trial on the merits. In
view of the denial, accused movants filed their respective motions 158 for
reconsideration which were likewise denied'V for lack of merit. Thereafter, the
presentation of defense evidence ensued.

146 TSN dated March 16, 2011, p. 24.


/47 TSN dated January 14, 2013, pp. 26-31.
/48 Id., pp. 26-31.

149 Separate Folder denominated as Vol. 22-A

150 Records, Vo!. 24, pp. 434-435; Cua's Objections to Formal Offer of Exhibits dated October 4, 2012; Sharma's

Comment dated October 17, 2012; Guballa and Olandez's Comment to Prosecution's Formal Offer of Evidence dated
October 4, 2012; Andutan, Jr., "Comment/Opposition (To Prosecution's Consolidated Formal Offer of Exhibits)
dated October 28, 2012 and Supplement to Comment/Opposition (To Prosecution's Consolidated Formal Offer of
Exhibits). However, these comments oppositions are not found in the records, the only basisfor these averments is the
Minute Resolution dated August 28, 2013 found on Vo!. 24, pp. 434-435.
151 Records, Vo!. 23, pp. 212-470

152 Records, Vol. 24, pp. 211-212

153 Id., 213-224

154 Id., pp.244-302

155 Id., pp. 434-435

156 Records, Vo!. 25, pp. 140-145 (Cua); pp. 146-150 (Guballa and Olandez);pp. 160-162 (Chua, Orendezand Castillo),
pp. 306-310 (Andutan, Jr.)
157 Id., pp. 295-296 (Minute Resolution dated November 26, 2013, denying the motions for leave to file demurrer to

evidence of Cua; Guballa and Olandez; Chua, Orendez and Castillo); Records, Vo!. 27, pp. 137-141 (Minute
Resolution dated May 6, 2014 denying the motion for leave tofile demurrer to evidence of Andutan, Jr.)

7:
158 Id., pp. 320-328 (Cua); pp. 330-344 (Chua, Orendez and Castillo);pp. 359-374 (Guballa and Olandez); Vol. 27, pp.

172-178 (Andutan, Jr.)

"'fh:,:~::::~2:~rc:::nl~11
f1in;t;";~;";7~ f/
:~':;:~~,~~~::~::;!;~::::.~';:wc:,:;,:~r.~nd
DECISION Page 23
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et at.
)(-----------------------------------------------------------------------------------------------------------------------x
Evidence for the Accused

Criminal Case No. 25940

Accused Emerito G. Guballa testified that he was a Supervisor for


Operations or Plant Superintendent of Nikko Textile Mills, Inc. from 1993 to
2000.160During his stay at the company, he was neither asked nor authorized to
sign agreements, contracts or any corporate documents on behalf of the
company."! Guballa asserted that he did not sign the Deed of 'Assignment'" dated
May 7, 1997.163To support his claim, he presented and identified documents
which allegedly contain his true signature and which, he claimed, is different
from the signature purporting to be his in the Deed of Assignment, to wit: (1)
three Community Tax Certificates!" dated May 8, 1996, May 13, 1998 and
February 24, 1999, (2) SSS Members Data Amendment Form, 165(3) Annual
Income Tax Return''" dated August 1, 2001, (4) Certificate of Income Tax
Withheld on .Compensation; 167 (5) Passport= and (6) four Gate Passes= dated
January 3, 1997, January 7, 1997, February 24, 1997 and 25 July 1997."170

Guballa authenticated the Certification!" dated 20 November 1999 issued


by one Gerardo Capalad, Personnel Officer of Nikko Textile Mills, Inc.,
certifying that he was a Supervisor for Operations or Plant Superintendent of the
said company, not an Assistant Manager of the company as indicated in the Deed
of Assignment. 172

When he received a subpoena from the Office of the Ombudsman, he


asked the General Manager and the President, Charles Uy, of the company but
both said that they knew nothing about it. Thereafter, he consulted a lawyer and
filed the Counter-Affidavit!" dated November 29, 1999, where he stated that he
requested the Office of the Ombudsman to order and direct the NBI and/or the
PNP Crime Laboratory to conduct a comparison and a verification of his
signature and the specimens on the documents attached to his counter affidavit;
however, said request was left unheeded and since then he did not make any
follow Up.174In comparison, he explained that he uses an initial for his signature,

160 TSN dated 13 November 2014, pp. 15-16.


161 Id., p. 16.
162 Exhibit "F"for the prosecution and Exhibit "P' for accused Guballa.
163 TSN dated 13 November 2014, pp. 16-17.
Respectively marked as Exhibits "2," "3," and "4"for accused Guballa in Criminal Case No. 25940.

tf
164

165 Exhibit "S'tfor accused Guballa in Criminal Case No. 25940.


166 Exhibit "6"for Guballa in Criminal Case No. 25940.
167 Exhibit "o-b't for Guballa in Criminal Case No. 25940.
Exhibit "Z't for Guballa in Criminal Case No. 25940.
tJ
168

169 Respectively marked as Exhibits "8" to "10"for Guballa in Criminal Case No. 25940.
170 TSN dated November 13,2014, pp. 20-32.
J7J Exhibit "12"for accused Guballa in Criminal Case No. 25940.
172 TSN dated November 13,2014, pp. 20-32
173 Exhibit "14"for accused Guballa in Criminal Case No. 25940.
174 TSN dated March 17, 2015, pp. 6-8.
DECISION Page 24
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
unlike that in the Deed of Assignment which used his full name. He affixed three
specimen signatures on a blank bond paper."!" He likewise testified that he only
met accused Andutan and Belicena at the start of the trial of these cases.!"

On cross-examination, Guballa stated that he signed documents for


internal purposes only and gate passes; 177 that prior to 1995 or 1996, he was using
a different signature.!= that on February 16, 2015 his counsel filed an Omnibus
Motion requesting to submit for forensic examination the Deed of Assignment
dated May 7, 1997. On re-direct examination, he clarified that when he said he
signed for internal purposes only what he meant was signing requisition slip,
memo slip, delivery slip and gate pass.> He does not know who signs contracts
or agreements on the company's behalf.i= He identified his Passport'" issued on
July 22, 1992, and Voter's Affidavit'" dated February 1, 1992 to show that prior
to 1995, he was using a signature slightly different from his present signature. 183
He clarified that when he said that his signature appearing on the SSS E-1 Form'"
is long, he meant it in comparison with his present signature. I 85

Gerardo A. Capalad, testified that he worked for Nikko Textile Mills,


Inc. from 1994 to 2000 as a Personnel Officcr.t= Part of his duties as Personnel
Officer was to issue certificate of employment. 187 He reported directly to the
General Manager, Mr. Dante Coralles.i= He corroborated the testimony of189and
authenticated the Certification that he issued to accused Guballa.!"

Leopoldo Quijano Pascual, a former Supervisor of Nikko Textile Mills,


Inc.,'91 testified that he worked at the Company from 1996 until 2000. He
essentially corroborated the testimony of accused Guballa."?

Criminal Case No. 25957

Accused Angel Tan Chua, a former Plant Manager of Jantex Phils. Inc.,
testified on his Judicial Affidavit'" dated July 29, 2016. He categorically denied

175 TSN dated March 17, 2015, pp. 9-12; Exhibit "13"foraccused Guballa in Criminal Case No. 25940.
176 Id., pp. 12-13.
177 Id., p. 12.

/78 TSN dated April 7, 2015, p. 25.

/79 TSN dated April 21, 2015, pp. 17-18.

180 u, pp. 17-18.

181 Exhibit "15"for accused Guballa in Criminal Case No. 25940.


/82 Exhibit "lo't for accused Guballa in Criminal Case No. 25940.
183 TSN dated July 9, 2015, p. 5.

/84 Exhibit "17"for accused Guballa in Criminal Case No. 25940.

185 TSN dated April 21, 2015, p. 25.

186 TSN dated June 30,2015, p. 13; Exhibits "18," "19," and "20. "
187 Id., pp. 14-12.
/88 Id. r.
~

f
189 Id.

190 Id.

191 TSN dated November 3,2015, p. 6.


/92 Id.

193 Records, Vo!. 29, pp. 105-114.


DECISION Page 25
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
that the signatures appearing above the name "Angel T. Chua" in the Deeds of
Assignment dated January 7, 1997 and January 29, 1997 were not his. To support
his assertion, he submitted documents allegedly containing his true signature.'?'
He left the company sometime in 1995. He identified the Fact-Finding Report'"
of Atty. Barcenal dated September 5, 2001, where it was stated in paragraph 37
thereof that his signature appearing in the Deed of Assignment was one of the
signatures determined as forgeries per certification issued by Mr. Jose O.
Espiritu, ChiefMIS, BID.'96On cross-examination, Chua stated that he submitted
several documents to the Office of the Ombudsman, which he thinks was the
basis of Mr. Espiritu.!" However, he admitted that he did not ask for a signature
comparison as he assumed that would already be the next step. He did not go to
the NBI, PNP or CIDG to ask for a signature comparison. 198

Criminal Case No. 25942

Accused Belinda Padilla Torres testified on her Judicial Affidavit= dated


March 28, 2017. She stated that she has been the Chief Accountant of Fibertex
Corporation (Fibertex) for twenty (20) years.i'"

When asked about the nature of Fibertex business, accused Torres stated
that the company is a manufacturer of nylon with factory in Taytay, Rizal. It
imports raw materials such as monomer (caprolactam), titanium dioxide, acetic
acid, spin finish oil for the production and manufacture of nylon yard, knitted
and nylon fabrics which are sold both in the Philippines and abroad. It has boilers
and power plants that use and consume PSPC's bunker fuel and other petroleum
based products. She claimed that one Raymond Babaroso of the Department of
finance conducted an inspection of Fibertex's premises and then issued a
Memorandum dated 6 January 1997 allegedly attesting that the Fibertex's
201

power plant consisting of two (2) units of Mirrlees Blackstone Engines with a
capacity/output of 2.2. megawatts per unit and three units of Keewanee Boilers
.were operational; that the company installed two storage tankers, one with a
capacity of 100,000 liters and the other 180,000 liters; and that the company
consumes 20,000 to 25,000 liters of bunker fuel a day.202

Accused Torres testified that, as the Chief Accountant of Fibertex, she


prepared all the documents required to transfer the TCCs subject of this case from
the company to PSPC. She claimed that the company complied with all the
requirements for transfer of the TCCs subject of this case to PSPC. She then

/94

195
Id., pp. 109-110.
Exhibit "l/'for accused Chua in Criminal Case No. 25957.
/96 Records, Vo!. 29, pp. 107-108.
i;
/97 TSN dated August 11,2016, pp. 26-28.

/98 Id., pp. 26-28.

/99 Records, Vo!. 30, pp. 4-30.

200 Id.

201 Exhibits "8-MMM" to "8-NNN."


!
202 Records, Vo!. 30, p. 6.
DECISION Page 26
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
identified the documentary requirements which were submitted to the DOF-
Center when the company applied for the transfer of the TCCs subject of this
case.>'

On cross-examination.>' accused Torres admitted the observations made


by the prosecution. She admitted that the Memorandum dated 6 January 1997
from DOF's Babaroso covered TCC Nos. 5839, 5908, 5915, 5550 but not TCC
Nos. 6235, 6892; that the Memorandum stated that only one power plant was
running; that there were differences in the volume of fuel per Deed of Assignment
and per DOF's Memorandum covering the transfers of the TCCs subject of this
case; that some of Pilipinas Shell's Product Invoices indicated that the deliveries
were made to Laguna, not Rizal; that some were addressed to "Hilon
Manufacturing Corporation"; that some PSPC's Production Invoices indicated
that the deliveries were made on 1 April 1996 which was not covered by the
purchase period (2 to 20 April 1996) indicated in DOF's Memorandum; that
Commercial invoices, Packing List, marked as Exhibits "3-MM" to
"3WWWW", evidencing deliveries of nylon to Fibertex's customers, were all
dated prior to April 2, 1996, which is beyond the period material to this case.

On redirect examination, accused Torres explained the observations made


by the prosecution. On the statement made in the Certification from the DOF's
Babaroso, accused Torres explained that the two (2) power plants are not
simultaneously ran; one serves as a standby power plant.>" Regarding the
differences in the figures in Deeds of Assignment and in the Requests for Transfer
covering the transfer ofthe TCCs subject of this case, she clarified that the figures
in the Deeds of Assignment are the exact figures. The figures in the Requests for
Transfer are based on invoices (indicating deliveries from PSPC to Fibertex for
a given period) which are intended to be greater than the amount in the Deeds of
Assignment in order to fully utilize the value of the tax credits; whatever the
difference is will be paid in cash.s= On why there was a mix of product and sales
invoices to support the purchase of oil from PSPC, she clarified that product
invoices are issued to Fibertex by PSPC for regular fuel purchase and sales
invoices for special oil purchases, such as helix. As to deliveries to Hilon, in
Laguna, accused Torres clarified that the deliveries were for the account of
Fibertex.>' manufacturing of products is done in two sites, one in Rizal and the
other in Laguna.r= She asserted that Fibertex owns the plant in Laguna.v'

203 Id., pp. 8-30.


204 TSN dated April 26, 2017; TSN dated April 18, 2017.
205 TSN dated April 27, 2016, pp. 8-9.
206 Id. pp. 9-15.
207 Id.

208 Id.

209 Id.
DECISION Page 27
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
Criminal Case Nos. 25942, 25943 and 25954

Ester H. Tanco-Gabaldon, accused in Criminal Case Nos. 25942, 25943


and 25954, testified on his Judicial Affidavir" dated July 27,2017.

In Criminal Case No. 25942, Accused Gabaldon testified that she is the
Vice-President of Fibertex for over thirty-three (33) years. As Vice-President,
she oversees and supervises the Finance Department of the company, including
the preparation and submission of requirements to the DOF in connection with
its application for transfer ofTCCs to PSPC.2l1She identified a Deed of Absolute
Sale2J2 dated 19 August 1987 showing that Fibertex bought a plant in Laguna
from the government through asset privatization trust. 213She claimed that
Fibertex is not a garment-manufacturing firm; although, it sells products to
garment firms.?" Essentially, she corroborated the testimony of accused Torres
on the nature of Fibertex's business. She stated that the company consumes
substantial volume of fuel due to its round-the-clock operation. Especially in the
90s, when power interruptions were frequent, the company had to rely on power
generated by its power plants.v'She asserted that Fibertex complied with all the
requirements for the transfer of the TCCs subject of this case to PSPC. She then
identified the requirements that were submitted to the Center."?

In Criminal Case No. 25943, accused Gabaldon testified that she has been
serving as the Finance Manager/Director ofJ&P Coats for forty-five (45) years."?
Just like Fibertex, J&P Coats is owned by the Tanco family of which she is a part
of.218As Vice-President, she supervises the preparation and submission of the
requirements to the Center in connection with the Transfer of J&P Coats' TCCs
to PSPC.219J&P Coats' main office is in Marikina City. It manufactures raw
materials such as sewing and handicraft threads (knitting yam, crochet and
embroidery threads) for export or local sales to end-product manufacturers such
garments, bags and shoes manufacturers. It is not a garment-manufacturing
company.s> The company uses generator sets and boilers, which were needed in
the 90s due to frequent power interruptions.'?' As such, the company procures
substantial volume of bunker fuel and other fuel-based products from PSPC,222
which it pays either through check or through assignment of TCCs.223As regards
the company's transfer of TCCs subject of this case to PSPC, she asserted that
the company complied with all the requirements for transfer. 224She then

210 Records, Vo/. 32, pp. 10-42.


2ll u, pp 13-14.
212 Exhibit "13" to "13·m. " ~
213

214

215

216

217

218
Records, Vol. 32, p. 14.
Id., p. 14.
Id., pp. 15-16.
Id.
Id., p. 25.
Id.
I
219 Id.
220 Id.
221 Id., p. 26.
222 Id.
223 Id.
224 Id., p. 27.
DECISION Page 28
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
identified the documents which the company submitted to the Center in
connection with the transfer of its TCCs to PSPC.225

In Criminal Case No. 25954, accused Gabaldon testified that she has been
the Finance Manager/Director of Manila Bay Spinning.>' Just like Fibertex and
J&P Coats, the company is owned by the Tanco family of which she is a part
of.227As Vice-President, she supervises the preparation and submission of the
requirements to the Center in connection with the Transfer of Manila Bay
Spinning's TCCs to PSPC.228She stated that J&P Coats has its main office in
Marikina City.229It manufactures raw materials such as polyester yam, acrylic
yam, cotton yarn, for export or local sales to end-product manufacturers like,
garment factories, knitting companies, towel manufacturers, textile, thread
manufacturers, industrial companies that manufacture industrial belts.?" The
company uses generator sets and boilers, which were needed in the 90s due to
frequent power interruptions. 231As such, the company procures substantial
volume of bunker fuel and other fuel-based products from PSPC,232which it pays
either through check or through assignment of TCCs. 233As regards the
company's transfer of TCCs subject of this case to PSPC, she asserted that the
company complied with all the requirements for transfer.'> She then identified
the documents which the company submitted to the Center in connection with
the transfer of its TCCs to PSPC.235

On cross-examination, accused Gabaldon confirmed the difference in the


volume of fuel as shown in the Deed of Assignmenf36 dated June 24, 1996 and in
the Summary Schedule of Purchases?" covering TCC No. 4817. Invoice No.
30868, as shown in the Summary Schedule of Purchases, 238 which allegedly
submitted to support the transfer ofTCC No. 7104, was not on file.>? The volume
of fuel indicated in the Deed of Assignment dated May 2, 1997 is higher than the
volume indicated in the Summary of Purchases?" With regard to the assignment
ofTCC Nos. 3629, 3999, 5266, 5283, 5284, 5445, 5462, 5502, 5501, and 5504,
accused Gabaldon admitted that the amount shown in the Schedule Summary of
Purchases:" is lesser than the amount in the Deed of Assignment'" September
26, 1996.243

225 Id., pp. 27-33.


226 Id., p. 34-36
227 Id.
228 Id.
229 Id.
230 Id.
23/ Id.
232 Id.
233 Id.
234 Id.
235 Id., pp. 33-42.
236 Exhibit "19-c"for accused Gabaldon in Criminal Case Nos. 25942, 43, and 54.
237 Exhibit "19-f'for accused Gabaldon in Criminal Case Nos. 25942, 43, and 54.
238 Exhibit "I l-Il" for accused Gabaldon in Criminal Case Nos. 25942, 43, and 54.
239

240

241
TSN dated August 9,2017, pp. 32-34.
Id., p. 35.
Exhibit "10-N"for accused Gabaldon in Criminal Case Nos. 25942, 43, and 54. 1 cJ
I
242 Exhibit "1O-F"for accused Gabaldon in Criminal Case Nos. 25942, 43, and 54.
243 TSN dated August 9,2017, pp. 45-51.
DECISION Page 29
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
On re-direct examination, accused explained the difference in the figures
between the Deeds Assignment and the Summary Schedule of Purchases.
According to her, in preparing the Deeds of Assignment they only estimated the
figures. It was only during the transfer when they were required to submit the
purchases in support of the transfer.>' On re-cross examination, the prosecution
pointed out that the Certificate of BOI Registration used by the Center as basis
for issuance ofTCCs to J&P Coats was issued in 1980, despite the fact that under
the Omnibus Investment Code of 1987 J&P Coats should have renewed its
registration.>'

Romula Y. Montalla was presented as a witness for accused Gabaldon


in Criminal Case No. 25943. She testified on his Judicial Affidavit'" dated April
12,2018. She stated that she was 'an Accounting Staff at J&P Coats from 1971
to 1977, the Chief Accountant from 1971 to 2001, and a consultant after 2001.247
She assisted accused Gabaldon in applying for the transfer of the company's
TCCs to PSPC and in submitting the requirements pertinent thereto to the DOF
One-Stop Shop,248which she enumerated.>? Among the requirements that she
mentioned was J&P Coats' Certificate of BD] Registration'" No. 80-002 dated
1980. When asked to explain why said registration certificate was dated 1980,
she explained that the registration was for an exporter company.P! The activity
of the company at that time, for it to be BOI registered, pertained to export; and
it is the company's understanding that for an exporting company, the said
certification did not have an expiration and, in fact, the same was used for years
after its issuance to avail of tax-related incentives or benefits as a BOI-registered
company.>" She likewise testified that in 1996 and 1997 the company had a
production capacity of 3,500,000 kg per annum.>' It's export sales amounted to
P178,169,208.50 or 45% of the annual sales in 1996 and P194,086,400 or 43%
of the annual sales in 1997.254

Criminal Case No. 25946

Accused John T. Cua testified on his Judicial Affidavir55 dated October


9, 2018. He stated that he is the Vice-President of Fibrefill Manufacturing Inc.
(Fibrefill) since 1989. The company is engaged in the manufacture of, among
others, non-woven products such as "paddings," which is used as fillers to make
jackets become thicker. The company imports raw materials called polyester
staple fiber, which undergoes a manufacturing process to produce the finished

244 TSN dated August 15,2017, pp. 32-34.


245 TSN dated March 7, 2018, pp. 36-37.
246 Records, Vol. 33, pp. 383-392.
247 Id.
248 Id.
249 Id.,

250 Exhibit "1O-r"for accused Gabaldon.


251 Records, Vol. 33, p. 387-388.
252 Id.
253 Id.
254 Id.
255 Records, Vol. 34.
DECISION Page 30
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
product called "paddings." In turn, these "paddings" are' sold to
manufacturers/exporters of winter jackets or outer wear. He presented a
"Padding/Polyfill Production Flow Chart" 256 showing the process in making
paddings. Further, he stated that the process involves machines with boilers and
the boilers operate on diesel fuel, which is supplied= by PSPC. By estimation,
he stated that the company consumes around 10,000 to 15,000 liters per month,
or approximately 120,000 to 180,000 liters per year. He identified a Certificate
of Registration'? issued by the BOI dated November 8, 1989 to prove that the
company is a BOI-Registered company. According to him, the company had
transferred/assigned tax credits to PSPC. Moreover, he claimed that the company
secured the approval of the Center for the transfer of its TCCs to PSPC, as shown
by a Letter Request'" dated December 13, 1998 submitted to the Center. He then
identified the documents pertinent to such transfer such as the Deed of
Assignmenf260 dated October 24, 1996. During preliminary investigation before
the Office of the Ombudsman, he wrote a Letter 261 dated August 3, 2000
addressed to the Center concerning the issue, for which he received from the
Center a Certification= dated November 22, 2000 signed by Alberto Salanga,
then Executive Director of the Center, which allegedly shows that the transfer of
TCC No. 001903 by the company to PSPC was approved based on its purchases
of oil from PSPC.

The open court testimony of Ernesto Q. Hiansen, then the incumbent


Executive Director of the DOF-Center, was dispensed with upon stipulation of
the parties that he could identify the Certification dated November 22,2000.263

Atty. Florencio M. Martinez testified on his Judicial Affidavit'" dated


November 27, 2018. He was presented to prove the existence of the duplicate
original, which he claimed to have been lost, of the photocopy documentary
exhibits for accused Cua.265 According to him, the duplicate original of the
photocopy documentary exhibits might have been lost when he transferred from
one office to another.t= These documentary exhibits are: Exhibits "1," "I-A," "l-
A-I", "I-C ,"267 "1-D", "I-E ," "I-E-l ,"268 "1-B " " "3 " and "4 ."269

256 Exhibit "2"for accused Cua.


257 Exhibit "3" (Certification issued by PSPC dated 3 March 2004) for accused Cua.
258 Exhibit "4"for accused Cua.
259 Exhibit "l-B'ifor accused Cua.
260 Exhibit "1- E" for accused Cua.
261 Exhibit "1- A "for accused Cua.
262 Exhibit "1"for accused Cua.
263 Records, Vol. 34 (Order dated October 16,2018).

!
264 Records, Vol. 36, pp. 51-58.
265 Records, Vo!. 36, pp. 54-55.
266 Id. /
: Exhibit "A" for the prosecution in Criminal Case No. 25946. ~
Exhibit "A-l"for the prosecution in Criminal Case No. 25946.
269 Records, Vo!. 36, pp. 55-56.
DECISION Page 31
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
Yvette Kristine Salonga Lee testified on her Judicial Affidavit'" dated
January 15, 2019. She stated that she was the Secretary of Atty. Martinez from
2003 to 2016. As Secretary, she kept the files pertinent to the cases handled by
Atty. Martinez, including the duplicate original of the exhibits for accused Cua
in this case. Sometime in 2016, Atty. Martinez asked for the said duplicate
original; however, despite thorough search, she was unable to locate them. She
claimed that they kept photocopies of the documents, which are allegedly faithful
reproduction of the lost duplicate originals.v' On cross-examination, witness Lee
testified that the documents lost were the duplicate original, not the original.s"

Criminal Case No. 25961

Accused Fernando Diaz Orendez testified on his Judicial Affidavit?"


dated October 4, 2017. He stated that he was a Plant Superintendent of Jibtex
Industrial Corp. from 1995 until early 1996. He denied having knowledge 274

about the TCCs subject of this case as well as the Deeds of Assignment pertinent
thereto.>= In fact, he claimed that he had never seen a TCC before.>' He
identified the Fact Finding Report": dated September 5, 2001 stating that his
signature was among those found to be forgeries as per certification of one Mr.
Jose O. Espiritu.F" He denied having signed the Deeds of Assignment'? dated
January 29,2007 and Deed of 'Assignment'" dated February 26, 1997.281 To show
thatthe signatures on the Deeds of Sale are markedly different from his signature,
he presented a copy of his 1998 Annual Income Tax Return.w He further stated
that he submitted the original of the said tax return to the Office of the
Ombudsman, through Prosecutor Pascual. 283 Additionally, he submitted other
documents showing his true signature: (1) Community Tax Certificate+ dated
April 4, 1998, (2) Community Tax Certificate= dated April 15, 1999, (3) SSS
Member's Data Amended Form286 dated April 1, 1999, (4) Senior Citizen's
Identification Card,287(5) Tax Identification Card,288and (6) SSS Identification
Card.289According to him, the original were submitted to Prosecutor Pascual,

270 Id. pp. 174-177.


271 Id., pp. 175-176.
272 TSN dated January 22,2019, pp. 13-15.
273 Records, Vo/. 33, pp. 91-102.
274 Id., p. 93.
275 Id., p. 94.
276 Id., p. 94.
277 Exhibit "2"for accused Orendez.
278 Records, Vo/. 33, 95-96.
279 Exhibit "3"for accused Orendez.
280 Exhibit "5"for accused Orendez.
281 Records, Vo/. 33, p. 96.
282 u, pp. 97-99; Exhibit "4"for accused Orendez.
283 Id., p. 97.
284 Exhibit "8"for accused Orendez.
285 Exhibit "9"for accused Orendez.
286 Exhibit "10" for accused Orendez.
287 Exhibit "11"for accused Orendez.
288 Exhibit "12"for accused Orendez.
289 Records, Vo/. 33, p. 99; Exhibit "13" for accused Orendez.
DECISION Page 32
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
except for his Senior Citizen Identification Card which was surrendered to the
DSWD for purposes of issuing a new one.w

Accused's Formal Offer of Evidence


On August 22, 2016, accused Chua submitted his Formal Offer of
Evidence/"! consisting of Exhibits "I" to "13"; "15" to "16" inclusive of
submarkings which the Court ADMITTED 292 taking into consideration the
objections raised by the prosecution in its Comment/Opposition 293 filed on
August 31, 2016.
On October 31,2018, accused Gabaldon (25942, 25943 and 25954) and
Torres (25942 only) jointly submitted their Formal Offer of Documentary
Exhibits with Motion for the Marking /Re-Marking of Documentary Exhibits't"
consisting of Exhibits "2-UUU" to "19-cc" inclusive of submarkings for
Criminal Case No. 25942 (Fibertex); Exhibits "10-a" to "43" for Criminal Case
No. 25943 (J & P) and Exhibits "4-a" to "4-b" and "4-h" for Criminal Case No.
25954 which were admitted by the Court in a Minute Resolution''" dated January
14, 2019 over the objections raised by the prosecution in its
Comment/Opposition'r" filed on January 7, 2019.
On February 11, 2019, accused Cua filed his Formal Offer of
Documentary Evidence 297 consisting of Exhibits "1" to "4" inclusive of
submarkings which was ADMITTED by the Court in a Minute Resolution dated
February 18, 2019 over the objection of the prosecution in its Opposition'?" filed
on February 15,2019.
On August 9,2019, accused Orendez filed his Formal Offer of Evidence
consisting of Exhibits "" 1" to "14" inclusive of sub-markings.i'" On even date
accused Guballa filed his Formal Offer of Exhibits with Manifestation to File
Memorandum consisting of Exhibits "1" to 26" inclusive of sub-markings. 300 The
same were ALL ADMITTED by the Court in a Minute Resolution."! dated
September 17, 2019 over the objections raised by the prosecution its consolidated
Opposition'[i filed on August 20, 2019.

290 Id., p. 100.


291 Records, Vol. 29, pp. 183-234.
292 Id., pp. 394-395.

293 Id., pp. 239-249.

294 Records, All of Vol. 35.

295 Records, Vo!. 36, pp. 163-171.

296 Id., pp. 97-127.

297 Id., pp. 216-234.

298 Id., pp. 244- 246.

299 Id., pp. 450-500.

300 Records, Vol. 36, pp. 502-548

301 Records, Vol. 37, pp. 34-39

)02 Records, Vo!. 36, pp. 574-585


DECISION Page 33
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
Memoranda of the Parties
Accused Chua filed his Memorandum/" on October 21, 2019. Accused
Cua filed his Memorandum on October 25, 2019.304 Accused Guballa and
Olandez filed their Joint Memorandum on even date. Accused Gabaldon and
Torres filed jointly their Trial Memorandum+" on November 15, 2019. Finally,
on November 29, 2019, the prosecution filed its Memorandum. 306 Thereafter,
these consolidated cases were deemed submitted for Decision.r'"

Issue
The issue to be resolved in these cases is whether or not the accused
violated Section 3(e) ofR.A. No. 3019 otherwise known as the Anti-Graft and
Corrupt Practices Act.

Ruling

The Court will not rule on the culpability of accused Belicena in Criminal
Cases Nos. 25940 to 25962 as the proceedings against him were suspended due
to his deteriorating mental faculties (dementiay= as well as of accused Angel
Jimenez in Criminal Case No. 25944, Delfin Poonim in Criminal Case No.
25948, Joel Ignacio in Criminal Case No. 25949 and Sanjay Dalmia in Criminal
Case No. 25958, who remain at large and have not been arraigned.

Section 3(e) ofR.A. No. 3019 reads:

SEC. 3. Corrupt practices of public officers. - In addition to acts or


omissions of public officers already penalized by existing law, the following
shall constitute corrupt practices of any public officer and are hereby declared
to be unlawful:

xxx xxx xxx

(e) Causing any undue injury to any party, including the Government,
or giving any private party any unwarranted benefits, advantage or preference
in the discharge of his official, administrative or judicial functions through
manifest partiality, evident bad faith or gross inexcusable negligence. This
provision shall apply to officers and employees of offices or government
corporations charged with the grant of licenses or permits or other concessions

(rJ
303

304
Records, Vo. 37, pp. 74-95
Id., pp. 118-141
305 Id., pp. 179-218

306 Id., pp. 253-277

307 Id., pp. 34-39

308 Records, Vo!. 27, pp. 315-320 (Minute Resolution of the Court dated 22 September 2014).
I
DECISION Page 34
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
The essential elements for violation of Section 3(e) of Rep. Act No. 3019
are as follows:

1. that the accused must be a public officer discharging


administrative, judicial, or official functions (or a private
individual acting in conspiracy with such public officers);
2. that he acted with manifest partiality, evident bad faith, or
inexcusable negligence; and
3. that his action caused any undue injury to any party, including
the government, or giving any private party unwarranted
benefits, advantage, or preference in the discharge of his
functions.P''

The First Element:


That the accused must be a public officer
discharging administrative, judicial, or official
functions (or a private individual acting in
conspiracy with such public officers)

There is no dispute as to the presence of the first element. The parties


stipulated that accused Andutan, Jr. was the Deputy Executive Director of the
One Stop-Shop Interagency Tax Credit and Duty Drawback Center (DOF-
Center) of the DOF at the time material to these cases."? The other accused are
private persons charged in conspiracy with accused Andutan, Jr.

The Second Element:


That the accused acted with manifest partiality, evident
bad faith, or gross inexcusable negligence

It should be pointed out that the Informations ascribed manifest partiality


and evident bad faith as the modes by which the alleged violations of Section
3(e) ofR.A. No. 3019 were committed by the accused. In Fuentes v. People.i"
the Supreme Court defined "manifest partiality" and "evident bad faith," as
follows:

x x x there is "manifest partiality" when there is a clear,


notorious, or plain inclination or predilection to favor one side or
person rather than another. On the other hand, "evident bad faith"
connotes not only bad judgment but also palpably and patently
fraudulent and dishonest purpose to do moral obliquity or conscious
wrongdoing for some perverse motive or ill will. It contemplates a
state of mind affirmatively operating with furtive design or with
some motive or self-interest or ill will or for ulterior purposes.

309

310

311
Fuentes v. People, G.R. No. G.R. No. 186421, April 17, 2017.
Records, Vol. 24, (Pre-Trial Orders dated October 8 and October 14,2003).
G.R. No. 186421, April 17, 2017.
~jrl
DECISION Page 35
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x

The felonious acts of the accused attributed in the Informations allegedly


were their recommendations and approvals of the transfers of the subject TCCs
from the private firms to PSPC allegedly without legal basis and proper/required
documentation and using forged Deeds of Assignment. Therefore, the
determination of the presence of the second element hinges on: (1) whether the
transfers of the subject TCCs from the private firms to PSPC had no legal basis;
and (2) whether such transfers were made without proper/required
documentation and using forged Deeds of Assignment.

On the claim that the transfers of


TCCs from the involved private
firms to PSPC had no legal basis

While the Informations generally alleged lack of legal basis for the
transfers of TCCs, it failed to specify with particularity why the transfers were
without legal basis, which is supposedly the ultimate fact constituting the
charges. Ultimate facts are the essential and substantial facts which either form
the basis of the primary right and duty or which directly make up the wrongful
acts or omissions of the defendant. 312 In these cases, the allegations in the
Informations that the assailed transfers of the TCCs were "without legal basis x
x x" is a conclusion of law. Stated differently, there is simply no facts alleged in
the Informations as basis in pressing the charges against the accused that will
guide the Court in assessing whether the assailed transfers of the TCCs were
indeed "without legal basis xxx. " It is basic that every person accused of a crime
has the right to be informed of the nature and cause of accusation against hirn.v-
It is so fundamental that in a catena of cases.!" the Supreme Court rendered
judgments of acquittal after finding that the accused were convicted for acts or
offense not or different from that alleged in the information in violation of their
constitutional right to be informed of the nature and cause of accusation against
them.

In postulating that the transfers ofTCCs to PSPC were without legal basis,
the prosecution in its Memorandum claims that the transfers were of doubtful
validity because PSPC, not being a supplier of domestic raw material or
component of the registered activity or products of the private firms, is not
qualified to be a transferee of the subject TCCs.

The argument, however, is bereft of merit.

3/2 Bautista vs. Court of Appeals, G.R. No. 143375, July 6, 2001.
3/3 Section 14(2), Article IIL 1987 Constitution, See also Section Itb), Rule 115 of the Revised Rules of Criminal
Procedure.
3/4 Malabanan vs. Sandiganbayan, GR Nos. 186329, 186584-86, August 2,2017; Evangelista vs. People, G.R.

Nos. 108135-136 (Resolution), August 14,2000; Estrellado-Mainarv. People, G.R. No. 184320, July 29, 2015.
DECISION Page 36
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
In Pilipinas Shell Petroleum Corp. v. Commissioner of Internal
Revenuei'? the Supreme Court, on the qualification of PSPC to acquire TCCs
originally issued by the DOF-Center to various BOI-registered companies, stated
that PSPC need not be a capital equipment provider or a supplier of raw material
and/or component supplier to the transferors; it is enough that PSPC is a BOI
registered entity, viz:

Third, the post-audit the Center conducted on the transferred TCCs,


delving into their issuance and validity on alleged violations by PSPC of the
August 29, 1989 MOA between the DOF and BOr, is completely misplaced.
As may be recalled, the Center required PSPC to submit copies of pertinent
sales invoices and delivery receipts covering sale transactions of PSPC
products to the TCC assignors/transferors purportedly in connection with an
ongoing post audit. As correctly protested by PSPC but which was
completely ignored by the Center, PSPC is not required by law to be a
capital equipment provider or a supplier of raw material and/or
component supplier to the transferors. What the law requires is that the
transferee be a BOI-registered company similar to the BOI-registered
transferors.

The rRR of EO 226, which incorporated the October 5, 1982 MOA


between the MOF and BOr, pertinently provides for the guidelines concerning
the transferability of TCCs:

[T]he MOF and the BOI, through their respective


representatives, have agreed on the following guidelines to
govern the transferability of tax credit certificates:

1) All tax credit certificates issued to BOl-registered enterprises


under P.D. 1789 may be transferred under
conditions provided herein;

2) The transferee should be a BOI-registered firm;

3) The transferee may apply such tax credit certificates


for payment of taxes, duties, charges or fees directly due to the
national government for as long as it enjoys incentives under
P.D. 1789. (Emphasis supplied.)

The above requirement has not been amended or repealed during the
unfolding of the instant controversy. Thus, it is clear from the above proviso
that it is only required that a TCC transferee be BOI-registered. In requiring
PSPC to submit sales documents for its purported post-audit of the TCCs, the
Center gravely abused its discretion as these are not required of the transferee
PSPC by law and by the rules.

While the October 5, 1982 MOA appears to have been amended by the
August 29, 1989 MOA between the DOF and BOI, such may not operate to
prejudice transferees like PSPC. For one, the August 29, 1989 MOA remains
only an internal agreement as it has neither been elevated to the level of nor

sts C.R. No. 172598, December 21,2007. ;1rJ I


DECISION Page 37
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
J(-----------------------------------------------------------------------------------------------------------------------J(
incorporated as an amendment in the IRR of EO 226. As aptly put by the CTA
Division:

If the 1989 MOA has validly amended the 1982 MOA,


it would have been incorporated either expressly or by reference
in Rule VII of the Implementing Rules and Regulations (IRRs)
of E.O. 226. To date, said Rule VII has not been repealed,
amended or otherwise modified. It is noteworthy that the 1999
edition of the official publication by the BOI ofE.O. 226 and its
IRRs (Exhibit R) which is the latest version, as amended, has
not mentioned expressly or by reference [sic] 1989 MOA. The
MOA mentioned therein is still the 1982 MOA.

The 1982 MOA, although executed as a mere agreement


between the DOF and the BOI was elevated to the status of a
rule and regulation applicable to the general public by reason of
its having been expressly incorporated in Rule VII of the IRRs.
On the other hand, the 1989 MOA which purportedly amended
the 1982 MOA, remained a mere agreement between the DOF
and the BOI because, unlike the 1982 MOA, it was never
incorporated either expressly or by reference to any amendment
or revision of the said IRRs. Thus, it cannot be the basis of any
invalidation of the transfers of TCCs to petitioner nor of any
other sanction against petitioner.

For another, even ifthe August 29, 1989 MOA has indeed amended the
IRR, which it has not, still, it is ineffective and cannot prejudice third parties
for lack of publication as mandatorily required under Chapter 2 of Book VII,
EO 292, otherwise known as the Administrative Code of 1987, which
pertinently provides:

Section 3. Filing. - (1) Every agency shall file with the


University of the Philippines Law Center three (3) certified
copies of every rule adopted by it. Rules in force on the date of
effectivity of this Code which are not filed within three (3)
months from the date shall not thereafter be the basis of any
sanction against any party or person.

(2) The records officer of the agency, or his equivalent


functionary, shall carry out the requirements of this section under
pain of disciplinary action.

(3) A permanent register of all rules shall be kept by the


issuing agency and shall be open to public inspection.

Section 4. Effectivity. - In addition to other rulemaking


requirement provided by law not inconsistent with this Book,
each rule shall become effective fifteen (15) days from the date
of filing as above provided unless a different date is fixed by
law, or specified in the rule in cases of imminent danger to
public health, safety and welfare, the existence of which must
be expressed in a statement accompanying the rule. The agency I~
r
DECISION Page 38
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et at.
x-----------------------------------------------------------------------------------------------------------------------x
shall take appropriate measures to make emergency rules
known to persons who may be affected by them.

Section 5.....

(2) Every rule establishing an offense or defining an act


which pursuant to law, is punishable as a crime or subject to a
penalty shall in all cases be published in full text.

It is clear that the Center or DOF cannot compel PSPC to submit sales
documents for the purported post-audit, as PSPC has duly complied with the
requirements of the law and rules to be a qualified transferee of the subject
TCCs.

The above pronouncement was reiterated in Commissioner of Internal


Revenue v. Pilipinas Shell Petroleum Corp, 3/6 to wit:

In the 2007 Shell Case, the Court affirmed the validity of the TCCs, the transfer
of the TCCs to respondent Shell, and the use of the transferred TCCs by
respondent Shell to partly pay for its excise tax liabilities for the Covered
Years. The Court ratiocinated as follows: x x x Third, the DOF Center or DOF
could not compel respondent Shell to submit sales documents for the purported
post-audit. As a BOI-registered enterprise, respondent Shell was a
qualified transferee of the subject TCCs, pursuant to existing rules and
regulations. x x x. (Emphasis supplied)

While the afore-cited jurisprudence are tax cases, they nevertheless


squarely dealt with the qualification of PSPC as a transferee of TCCs from other
B01 registered firms such as the private firms in these cases. Hence, the Court is
of the view that the said rulings work to negate the criminal liability imputed
against the accused under the present charges. This is highlighted by the fact that-
while the prosecution presses in its Memorandum the alleged disqualification of
PSPC to be a transferee of the TCCs- it nonetheless dropped its charges in all of
the Informations against Pacifico Cruz of the PSPC, the transferee-beneficiary of
the TCCs, pursuant to the Memorandum''" of then Special Prosecutor Leonardo
P. Tamayo as approved by then Ombudsman Aniano A. Desierto on February
16,2001, which states:

The case against respondent Pacifico Cruz who represented


PSPC in the transaction, stands on a different plan. His
participation came after the applications for the transfer of the
TCCs were processed and approved. He was however indicted
upon the theory of conspiracy where the act of one is the act of
all. The undersigned finds no sufficient evidence of conspiracy
against him. His act of accepting in behalf of PSPC the
assignment of the TCCs is not by itself a conspirational act there

3/6 C.R. Nos. 197945 & 204119, July 9,2018.


3/7 Records, Vol. 3, pp. 252-254
DECISION Page 39
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
)(-----------------------------------------------------------------------------------------------------------------------)(
irregularities in the processing and approval of the transfers ofthe
TCCs which are admittedly genuine and authentic. X x x

The Memorandum of SP Tamayo [as approved] chose to point its finger


to the remaining accused who are officers of the DOF -Center and the
representatives of the firms as transferors of the TCCs, allegedly for the
"irregularities in the processing and approval of the transfers of the TCCs which
are admittedly genuine and authentic." The said claim, however, lacks
substantiation in evidence as will be discussed herein below.

On the claim that the transfers of


TCCs from the involved private
firms to pSPC were made without
proper / required documentation
and using forged Deeds of
Assignment

Similarly, the Informations did not provide or alleged what required


documentation has not been complied with. Even a plain reading of the
prosecution's Memorandum discloses that the prosecution did not bother to
discuss its case as far as this aspect of the present indictments is concerned.
Nevertheless, if only to exhaust the prosecution's general assertion on this score,
the Court will proceed to determine whether on the basis of the pieces of
evidence, the prosecution sufficiently proved its case.

In claiming that the transfers have no required/proper documentation, the


prosecution banked heavily on such conclusion of Atty. Barcenal in her Fact
Finding Report dated September 22, 1999. Her testimony, however, is proven
weak. Such conclusion was based solely on her assumption that the documents
she gathered from the BIR relative to the transfers were the only documents
submitted by the applicants to the DOF -Center, which issued/allowed the
transfers of the TCCs. The cross-examination''" of Atty. Barcenal reflects:

Atty. Now, I just want to clarify this. In your investigation then,


Santos Madam witness, you did not come across any document or
(Q.) documents submitted by any of the applicants or grantees in
these cases to the OSS-DOF in support ofthe application for
the transfer of the tax credit certificates in this case
invariably in favor of Pilipinas Shell and Petroleum
Corporation, that is a correct statement?
Witness Sir, documents submitted by the applicants? You question
A. is, pertaining to documents submitted by the applicants to
the One Stop Shop?

Q. In support of the transfer?


A. No, sir, because I presumed these are all submitted by the
applicants because they come from the BIR.

318 TSN dated August 25,2009, pp. 14-15.


DECISION Page 40
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
Q. SO, your assumption proceeds from No. 1, you obtained
some document from the BIR?
A. Practically all documents, sir.

Q. And then, all documents that you made as basis for your
investigation came from the BIR?
A. Yes, sir.

Q. And you just assumed that there (sic) were documents


submitted by the transferor, submitted to the OSS by the
transferor with respect to the transfers in favour of the
transferee, that is your assumption?
A. Yes, sir.

Q. For purposes of your testimony you are really incompetent


to assert that the transfers were without legal basis and
proper required documentation in one set of cases and using
forged Deed of Assignment in the other set of cases. You
are incompetent to testify on that, correct?
A. Yes, sir. Because this is already a product of preliminary
investigation not a fact-finding.l'"

Atty. Barcenal's testimony on May 13, 2009330 admitted that she did not
endeavor to secure or check documents on the assailed transfers from other
government agencies, not even from the DOF-Center, which processed the
applications for transfers of the subject TCCs to PSPC, and supposedly the
repositories or custodian of these documents, viz:

Atty. Atty. Barcenal, when you said that you reviewed certain
Alikpala documents and papers, what you actually went over and
(Q.) eventually summarized in your report which you have
submitted were only those that were submitted to you, is
that correct?
Witness Yes, sir.
(A.)

Q. You did not go out of your way to find out if there were
other pertinent (sic) and related documents in relation to
those applications for TCCs and assignments, you did not
go and find out ifthere were any others?
A. I only concentrated on the documents submitted to us.
However, sir, r made an interview with the Bor and the
executive director of the One Stop Shop to more or less help
me in evaluation the documents which I gathered from the
BIR.

Q. You yourself said that there was a rmrumum of 9


requirements. . . but you said that there were 9
requirements?
A. Yes, sir.

Ji9Id., pp. 14-15.


DECISION Page 41
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
Q. And yet, among the documents that you marked and
identified, there could not have been more than three or
four?
A. Yes, sir.

Q. Did you not ask for the other documents that should have
been part of the documents, that should have been
submitted to you for evaluation?
A. Actually, I asked that from, the person in-charge then was
Atty. Estrella Martinez who is now, I don't know if she's
retired, a Regional Director of the Bureau of Internal
Revenue assigned in Tacloban or Baguio. She was the one
who supplied me with these documents and she briefed me
as to the importance of these documents. And she
mentioned, as you can see there are non-compliance of the
mandatory requirements submitted to us by the One Stop
Shop. So, I'm turning over these documents to you for your
evaluation because the requirements were not complied
with by the assignor of the tax credit.

xxx xxx xxx

Q. The fact that somebody in the BIR gave you let us say, 3
documents, does not necessarily mean that 10 other
documents had been filed, was not turned over by the BIR
to your office, is that correct?
A. No, sir.

Q. What do you mean?


A. Well, as I previously mentioned, these documents were
placed in a docket, this was explained to me by Atty.
Martinez. Its (sic) tax credit is assigned in a particular
docket or a folder wherein all the documents supporting the
transfer are filed. So, If there are less documents vis-a-vis
the requirement, those are the only documents submitted by
the Center and nothing more, sir.

Q. Submitted to you?
A. Not to us to the BIR. And then the BIR transferred those
documents to us for our evaluation whether the transfer was
regular or irregular, sir.

Q. When those papers were first filed with the DOF One Stop
Shop, were you present when these papers were filed?
A. No, sir. I was not.

Q. So you never saw what documents were filed with the One
Stop Shop Agency?
A. No, sir. I only relied on the documents submitted to us.

Q. When those papers were transferred to one or the other


government office prior to yours, were you present when

I
these were transferred, inventories or turned over?

I~
A. No, sir. But I was informed by Atty. Martinez that from the
One Stop Shop, the documents supporting the transfer were
all directly filed with her office. I think her office then was
DECISION Page 42
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
the Tax Credit Assessment Department, I'm no longer
familiar with her department.

Q. So your knowledge on these matters is purely hearsay based


on what Atty. Martinez told you?
A. No, sir. It was not hearsay because she was an authority, she
was the one in-charge of the safekeeping or the custody of
those documents. I don't think that was hearsay.

xxx xxx xxx

Q. Did you not ask your office to show you the records that
you said were missing with respect to these requirements
which you do not have on your table?
A. In my office, sir?

Q. Yes.
A. These documents emanated from us, sir.

Q. You are from the Office of the Ombudsman?


A. Yes, sir.

xxx xxx xxx

Q. Atty. Barcenal, have you not gone those documents which


all of which are very relevant and material to each of these
TCCs that you have covered in your testimony?
A. No, I did not, sir.

Q. The fact that somebody in your office did not turn over to
you all the records which they turned over to Pros. Pascual,
impelled you to come up with the conclusion that those
documents were never filed. That is your conclusion just
because they did not give you or forward to you the copies?
I'll give you the right to conclude that those were never filed
in Court.
A. Sir, I have to remind you, I'm sorry for the term. I was
conducting a fact-finding, I did not conduct a preliminary
investigation. This report is the preliminary state. If my
report would be approved because I recommend a conduct
of the preliminary investigation which it happened, it
follows that I have sufficient evidence to support my
conclusion. It was not a preliminary investigation, it was
merely a fact-finding. That's why I did not coordinate with
the other bureaus as regard my evidence because for me, I
feel that the evidence I gathered was sufficient enough to
back up my recommendation.

Q. But did you not ask other members of your office whether
those documents that you have marked and identified in this
case were the only documents pertinent to those TCCs?
A. No more, sir, because I was the only one handling this case.
Although there are two signatories here but these are just .
. . I was the main actual investigator in this particular case! ~

I
DECISION Page 43
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x----------------------------------------------------------------------------------------------------------------------- x
Q. The prosecutor just admitted that those documents,
voluminous documents ... came from your office?
A. Sir, perhaps that's true because during the conduct of
preliminary investigations, the respondents are required to
submit their counter-affidavit. Perhaps, those are part of the
documents supported by the respondents in their counter-
affidavit. 320

She also stated that she did not ascertain whether the documents submitted
by the BIR were genuine, this despite the fact that some of the documents
submitted to her were mere photocopies, which also became the basis of her
report. She merely assumed'" that the documents were genuine, to wit:

Atty. Now let us go to these Exhibits "A," "B," "C," "D," up to


Santos "E."

You were saying that these were the very same documents
that were given to you by the BIR, in response to your
subpoena?
Witness Yes, sir.

Q. Did you assume that these documents are genuine, in your


investigation?
A. Yes, sir.

Q. You did?
A. Yes, sir, because these are the documents submitted by the
BIR.

Q. Did you check with the BIR if these are genuine documents?
A. No, sir, because -

Q. You did not?


A. I did not.

Q. So, you relied on the fact that it was the BIR that submitted
these documents?
A. Yes, sir.

Q. What about this Tax Debit Memo, Exhibit "A-I," Case No.
25940?

This supposedly came from the BIR?


A. Yes, sir.

Q. Did you assume that this is a genuine copy?


A. I assume, sir.

Q. So, that is an assumption that you did?


A. Yes, sir.

320 TSN dated May 13, 2009, pp. 10-19.


321 TSN dated August 4, 2009, pp. 55-61.
DECISION Page 44
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x----------------------------------------------------------------:--------------------------------------------------------x
Q. By the way, did you actually verify from the BIR if this
particular document, Exhibit "A-I," Case No. 25940, is
genuine?
A. I did not, sir.

Q. Now, this Tax Debit Memo, Exhibit "A-2," is a


communication from the Department of Finance to the BIR.

Do you confirm that?


A. Yes, sir.

Q. This document appears to have come from the Department


of Finance's One-Stop-Shop?
A. Yes, sir.

Q. Did you verify this from the Records Custodian if this is a


genuine copy?
A. I did not, sir.

Q. By the way, do you know the Records Custodian of the


Department of Finance?
A. No, -because there was a change on the---but the one who
took over is-

Q. You did not receive any document from the DOF-OSS?


A. None whatsoever, sir.

So, my question with respect to Exhibits "A, "A-I" and "A-


2" would be answer by you in the same manner with respect
to Exhibits "A", "B-1" and "B-2"?
A. Yes, sir.

xxx xxx xxx

Q. So in your investigation, you assumed that these Tax Credit


Certificates are genuine?
A. Yes, sir.322

This is so notwithstanding the fact that the BIR primarily had nothing to
do with the evaluation, processing and issuance of the TCCs presented before it
for tax credit, which is the work of the DOF -Center. On the other hand, nothing
from the prosecution's documentary evidence--consisting mainly of TCCS,323
DOF-TDMs, BIR-TDMs,324Deeds of Assignment, ATAPETs andPSPC's Letter

322 Id., pp. 55-61.


323 Under Article 21 of Executive Order No. 226 or the Omnibus Investment Code "Tax credit" shall mean any of the
credits against taxes and/or duties equal to those actually paid or would have beenpaid to evidence which a tax credit
certificate shall be issued by the Secretary of Finance or his representative, or the Board, ifso delegated by the Secretary
of Finance. The tax credit certificate including those issued by the Board pursuant to laws repealed by this Code but
without in any way diminishing the scope of negotiability under their laws of issue are transferable under such
conditions as may be determined by the Board after consultation with the Department of Finance; see also Pilipinas
Shell Petroleum Corporation v. Commissioner of Internal Revenue, G.R. No. 172598, December 21,2007.
324 Tax Debit Memo - the legal authority authorizing the utilization of the Tax Credit Certificates (TCR) as payment to
customs duties and tax obligations of the holder with the Bureau of Customs or aspayment to national internal revenue
obligations of the holder with the Bureau of Internal Revenue. A TCR cannot be utilized as payment to the BOC and
the BIR without a duly approved TDM from DOF
(https: / / I!/Ps.bi,.g<W.ph/ ejpswar] EFPSW,b _war / heIp/ helpPaymenthtm1. last accessed on January 3, 2019). ~ /
DECISION Page 45
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x----------------------------------------------------------------------------------------------------------------------- x
Request- show the alleged irregularities in the transfers of TCCs from the
private firms to PSPC. At best, these documents only prove the consummation
of the transfers and the eventual use by PSPC of the TCCs to pay for its tax
liabilities. Atty. Barcenal confirmed this when she testified-" along this line:

xxx xxx xxx

Atty. In your Fact-Finding Report which is Exhibit "I" for ease


Santos No. 25940, you made a finding that the transfers covered
by this case are irregular. You said that?
Witness Yes, sir. In my Report.

Q. That conclusion of yours apparently is not based on any of


these documents which you have confirmed to be not
irregular at all. Is that a correct statement? Not on these
documents.
A. I do not question the documents but I question the
irregularity of the transfer.

xxx xxx xxx

Q. Your finding that the transfers covered by these Tees


subject matter of this case NO. 25940, your finding that
these are irregular would not be based on these documents
because none of these documents have been found by you
to be irregular.
A. No, sir. Although this-

xxx xxx xxx

A. My answer, Your Honor, was "no" because I do not


question the regularity of the issuance of the Tax Credits
but the transfer is core of my investigation. So although
these documents only show that there was already transfer.
There was already transfer made by garments firms to oil
firms because my investigation is focused on the irregular
transfer.

Q. May we follow up Your Honor?


Justice
Jurado Okay.

Q. But that conclusion of yours is not based on any of these


documents that you have so far identified? You cannot say
that, for instance, Exhibits "A", "A-I", "A-2", "A-3", "A-
4" up to the last exhibit is a basis for your finding that the
transfer is irregular? You have not utilized these documents
as your bases for the finding, isn't that correct?
A. No, sir. I used these documents to confirm that there was
already a consummation of the. transfer.

Q. That's it. (sic)


A. That there was already transfer which I questioned.

J2S TSN dated February 24,2010, pp. 16-26.


DECISION Page 46
Crirn. Cases Nos. 25940 to 25962
People v. Belicena, et at.
x-----------------------------------------------------------------------------------------------------------------------x

Q. Yes.
A. That's why I said highly irregular and anomalous transfer.

xxx xxx xxx

Q. None of these documents would show that the transfers are


irregular. What they show - at least the Debit Memo - is
that the transfers had already been effected, is that correct?
A. Yes.326

Under the circumstances, therefore, the prosecution's basis for stating that
the transfers of the subject TCCs were not supported by proper/required
requirements has no solid ground, and therefore, casts reasonable doubt on the
purported irregularity of the transfers of TCCs. It should be added that accused
Gabaldon and Torres adduced evidence to prove submission of documentary
requirements+? to the Center for the transfer of TCCs, which Arty. Barcenal
appears to have failed to consider. This further weakens her conclusion that the
transfer of TCCs lacked proper/required documentation.

In Commissioner of Internal Revenue v. Petron Corporation, 328 the


Supreme Court discussed the process of transferring tax credit certificates, to wit:

The processing of a TCC is entrusted to a specialized agency called the "One-


Stop-Shop Inter-Agency Tax Credit and Duty Drawback Center" ("Center"),
created on 07 February 1992 under Administrative Order (A.O.) No. 226. Its
purpose is to expedite the processing and approval of tax credits and duty
drawbacks. The Center is composed of a representative from the DOF as its
chairperson; and the members thereof are representatives of the Bureau of
Investment (BOI), Bureau of Customs (BOC) and Bureau of Internal Revenue
(BIR), who are tasked to process the TCC and approve its application as
payment of an assignee's tax liability.

A TCC may be assigned through a Deed of Assignment, which the


assignee submits to the Center for its approval. Upon approval ofthe deed, the
Center will issue a DOF Tax Debit Memo (DOF- TOM), which will be utilized
by the assignee to pay the latter's tax liabilities for a specified period. Upon
surrender of the TCC and the DOF-TDM, the corresponding Authority to
Accept Payment of Excise Taxes (ATAPET) will be issued by the BIR
Collection Program Division and will be submitted to the issuing office of the
BIR for acceptance by the Assistant Commissioner of Collection Service. This
act of the BIR signifies its acceptance of the TCC as payment of the assignee's
excise taxes.

Needless to state, applications for transfer of TCCs are filed with and
processed by the Center, being the agency created for the purpose. It follows
therefore that the most competent person who can certify as to the completeness

J26Id., pp. 16-26.


J27Records, Vol. 30, pp. 8-30 (Toms only); Records, Vo!. 32, p. 16for Fibertex; pp. 27-33 for J&P Coats;pp. 33-42for
Manila Bay Spinning (Gabaldon only). See also Records, Vo!. 36, pp. 163-171 (Minute Resolution dated January 14,
2019).
328 G.R No. 185568, March 21,2012.
DECISION Page 47
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et at.
x-----------------------------------------------------------------------------------------------------------------------x
or incompleteness of the requirements submitted in support of each transfer is
the Center's Records Custodian. However, the prosecution chose not to present
anyone from the DOF -Center or obtain documents therefrom. Instead, it merely
gathered documents from the BIR and none else.

The Court is mindful of Atty. Barcenal' s testimony that one Atty.


Martinez, allegedly the BIR officer who submitted the prosecution evidence to
the Office of the Ombudsman, told her that the documents supporting the transfer
of TCCs were all directly submitted by the DOF-Center with Atty. Martinez's
office. Aside from being hearsay, which cannot be accorded probative value.'>
such assertion does not prove that all the documents submitted by the applicants
to the DOF-Center were, in fact, forwarded to the BIR. It remains possible that
some documents were lost in transit from the DOF-Center to the BIR or just
simply not forwarded.

Again, the Court notes that the prosecution, in its Memorandum, discussed
at length the illegality of the issuance of the subject TCCs to the private firms.
However, it is quite irrelevant since a plain reading of the Informations readily
discloses that the overt act ascribed to the accused is the recommendation and
approval ofthe transfers of the subject TCCs to PSPC. As such, the Court cannot
proceed to examine the illegality of issuance of the subject TCCs to the private
firms, and thereafter render a judgement of conviction if warranted, for the
irregularity of transfers, without violating the right of the accused to be informed
of the nature and cause of accusation against them.

No less than the Constitution guarantees the right of every person accused
in a criminal prosecution to be informed of the nature and cause of accusation
against him. This means that the accused may not be convicted of an offense
unless it is clearly charged in the Information. 330 Corollary, in criminal
prosecution, the complaint must contain a specific allegation of every fact and
circumstance necessary to constitute the crime charged.v' The main purpose of
requiring the various elements of a crime to be set out in the information is to
enable the accused to suitably prepare his defense. He is presumed to have no
independent knowledge of the facts that constitute the offense.'? Convicting him
of a ground not alleged while he is concentrating on his defense against the
ground alleged would plainly be unfair and underhanded.P!

At any rate, the prosecution's evidence as regards the illegality of the


issuance of the subject TCCs to the private firms are directed mainly at PSPC's
qualification to be a transferee, which has already been squarely passed upon and
discussed above in accordance with the Supreme Court pronouncements on
PSPC's qualification to be a transferee of TCCs, it being BOI-registered. If at

329 People v. Parungao, G.R. No. 125812, November 28, 1996.


330 Malabanan v. Sandiganbayan, G.R. No. 186329, August 2,2017.
33/ Guelosv. People, G.R. No. 177000, June 19,2017.

332 Canceran v. People, G.R. No. 206442, July 1,2015.

333 Guelosv. People, G.R. No. 177000, June 19,2017.


DECISION Page 48
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
all, as also discussed above, the Memorandum of SP Tamayo [as approved by
Ombudsman Desierto] had stated that "x x x the TCCs [which] are admittedly
genuine and authentic."

Participation of the accused


in the alleged conspiracy

There is conspiracy when two or more persons come to an agreement


concerning the commission of a felony and decide to commit it. Conspiracy is
not presumed. Like the physical acts constituting the crime itself, the elements
of conspiracy must be proven beyond reasonable doubt. While conspiracy need
not be established by direct evidence, for it may be inferred from the conduct of
the accused before, during and after the commission of the crime, all taken
together, however, the evidence must be strong enough to show the community
of criminal design. For conspiracy to exist, it is essential that there must be a
conscious design to commit an offense. Conspiracy is the product of
intentionality on the part of the cohorts.>'

In Maamo v. People= the Supreme Court held that:

It can readily be seen that the disbursement of funds at the municipal


level involves a successive process of review and clearing that requires the
participation of different public officers, each with different roles and duties.
Hence, in order to establish conspiracy between the Petitioners, the
Prosecution must present evidence other than the mere fact that the
Petitioners are at the opposite ends of the chain in the disbursement
process. To sustain a conviction based on such fact alone would necessarily
require the aid of conjecture and assumptions in order to establish
conspiracy. From the evidence adduced by the Prosecution, no clear nexus
exists to prove a unity of action and purpose between the Petitioners to
falsify the Time Books and Payrolls in order to commit Malversation
against the government. (Emphasis supplied)

Here, accused Andutan, Jr., one of the accused public officers, allegedly
recommended or approved the transfers of the subject TCCs. On the other hand,
accused private persons allegedly conspired with the accused public officials by
signing or allegedly signing the Deeds of Assignment. However, accused Guballa
(Criminal Case No. 25940), Chua (Criminal Case No. 25957), and Orendez
(Criminal Case No. 25961) categorically deny having affixed their signatures on
the Deeds of Assignment.

As in the Maamo case, aside from their signatures and the fact that they
are at the opposite end of the application process for the transfer of TCCs, as
alleged, nothing more was presented to establish a link to prove the unity of
action and purpose between the alleged acts of the accused.

334 G.R. No. 185195, March 17, 2010.


335 G.R. No. 201917, December 1,2016.
DECISION Page 49
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x

In fact, as to accused Andutan, Jr., the prosecution did not present


evidence, testimonial or documentary, on the extent of his participation in the
transfers of the subject TCCs. As can be readily gleaned from the records, the
only evidence presented by the prosecution that links him to any alleged
conspiracy is his purported signature on each of the subject TCCs-which pertains
only to the issuance of the subject TCCs. This fact without more is insufficient
to warrant a conviction. In Sabiniano v. Court of Appeals I" the Court held that
a mere signature or approval appearing on a voucher, check or warrant is not
enough to sustain a finding of conspiracy among public officials and employees
charged with defraudation, viz:

Apart from petitioner's signature on the treasury warrant, nothing else


of real substance was submitted to show petitioner's alleged complicity in the
crime. A mere signature or approval appearing on a voucher, check or warrant
is not enough to sustain a finding of conspiracy among public officials and
employees charged with defraudation. Proof, not mere conjectures or
assumptions, should be proffered to indicate that the accused had taken part in,
to use this Court's words in Arias vs. Sandiganbayan, the "planning, preparation
and perpetration of the alleged conspiracy to defraud the government" for,
otherwise, any "careless use ofthe conspiracy theory (can) sweep into jail even
innocent persons who may have (only) been made unwitting tools by the
criminal minds" really responsible for that irregularity. In the recent case of
Magsuci v. Sandiganbayan, involving an accusation for estafa through
falsification of public documents, where the accused not only eo-signed a check
but also noted an accomplishment report and signed the disbursement voucher
with the usual certification on the lawful incurrence of the expenses to be paid,
the Court held:

"Fairly evident, however, is the fact that the actions


taken by Magsuci involved the very functions he had to
discharge in the performance of his official duties. There has
been no intimation at all that he had foreknowledge of any
irregularity committed by either or both Engr. Enriquez and
Ancla. Petitioner might have indeed been lax and
administratively remiss in placing too much reliance on the
official reports submitted by his subordinate (Engineer
Enriquez), but for conspiracy to exist, it is essential that there
must be a conscious design to commit an offense. Conspiracy is
not the product of negligence but of intentionality on the part of
cohorts." (Italics not ours supplied.)

The Fact-Finding Report 337 dated September 5, 2001, which Atty.


Barcenal identified and authenticated.> is enough to further blur any connection
ofChua and Orendez to any alleged conspiracy. While it could not be ascertained
from the face of the Fact-Finding Report whether the Deeds of Assignment
referred to therein and Deeds of Assignment in these cases are identical, the

336 G.R. Nos. 76490 & 76558, October 6, 1995.

337 Exhibit "L'tfor accused Chua and Orendez in Criminal Case Nos. 25957 and 25960.
. 338 TSN dated May 13, 2009, pp. 31-32.
DECISION Page 50
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
finding in paragraph 37 of the said report that the signatures of accused Chua and
Orendez were forgeries shifted the burden of proof to the prosecution that Chua
and Orendez participated in the alleged conspiracy. Under the circumstances, the
doubt should be resolved in favor of the accused consistent with the time-honored
principle in criminal law: In dubio pro reo.v"

While the same is not the situation for accused Guballa as there was no
finding stating that his signature was a forgery, circumstances exist, however,
sufficient to cast reasonable doubt on his involvement in the alleged irregular
transfer. The rule is that the fact of forgery can only be established by comparison
between the alleged forged signature and the authentic and genuine signature of
the person whose signature is theorized upon to have been forged.>' On visual
examination, the signatures appearing on the Deeds of Assignment are palpably
different from the signatures appearing on the documents presented by her
containing his true signatures. It is also worthy to note that there is no Secretary
Certificate or Board Resolution presented to prove that at the least, she was
authorized to sign on behalf of Nikko Textile Mills, Inc. Thus, the Court cannot
conclude with moral certainty that the signatures on the Deeds of Assignment
were indeed that of accused Guballa.

The third Element:


The presence of any undue injury to any party,
including the government, or unwarranted benefits,
advantage, or preference given

Based on the foregoing disquisition, the Court need not make further
exhaustive discussion on the presence of this element. Reiterating, it has been
ruled by jurisprudential fiat that PSPC is a qualified transferee, thus, no
unwarranted benefit or preference was given to it by the assailed TCC transfers.
The alleged undue injury to the government is likewise not substantiated. Article
21 of EO 226 or the Omnibus Investment Code of 1987 defined the use ofTCCs,
thus:

"The Tax Credit Certificate shall be used to pay taxes,


duties, charges and fees due to the National Government."

The owner of a TCC or a transferee thereof may use a TCC to pay its tax
obligation to the government. In these cases, the transferor firms can no longer
use the TCCs they already transferred to PSPC to pay its dues to the government,
if there be any, which they have to settle in cash or other means allowed by law.
In either case, both the transferor- firms and PSPC would be fulfilling whatever

339 People v. Guinto, G.R. No. 198314, September 24,2014.


340 Heirs ofBucton v. Sps. Go, G.R. No. 188395, November 20,2013.
DECISION Page 51
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
x-----------------------------------------------------------------------------------------------------------------------x
obligations they have to the government within the scope of the law. Under no
clear situation, therefore, would the government appear to have been prejudiced
by the transfers.

In sum, the prosecution failed to prove its case beyond reasonable doubt
and so the Court is duty-bound to acquit the accused. In Maamo v. People, 341 the
Supreme Court fittingly held:

As a final note, the Court takes this occasion to reiterate that the
overriding consideration in criminal cases is not whether the court doubts the
innocence of the accused but whether it entertains a reasonable doubt as to his
guilt - if there exists even one iota of doubt, this Court is "under a long
standing legal injunction" to resolve the doubt in favor of the accused. Hence,
if the evidence is susceptible of two interpretations, one consistent with the
innocence of the accused and the other consistent with his guilt, the accused
must be acquitted.

In criminal cases, proofbeyond reasonable doubt charges the prosecution


with the immense responsibility of establishing moral certainty.>- The burden of
proof placed on the prosecution arises from the presumption of innocence in
favor of the accused that no less than the Constitution has guaranteed.>' Settled
is the rule that the prosecution must rely on the strength of its own evidence and
not on the weakness of the defense.>' Should the prosecution fail to discharge its
burden, acquittal must follow as a matter of course.>" Such is not only the right
of the accused but is also the constitutional duty of the Court.l"

WHEREFORE, premises considered, judgment is hereby rendered as


follows:

1. In Criminal Case Nos. 25940-62, accused ULDARICO P.


ANDUTAN, JR. is hereby ACQUITTED for failure of the prosecution
to prove his guilt beyond reasonable doubt;

2. In Criminal Case No. 25940, accused EMERITO G. GUBALLA


is hereby ACQUITTED for failure of the prosecution to prove his guilt
beyond reasonable doubt;

3. In Criminal Case No. 25942 accused BELINDA P. TORRES is


hereby ACQUITTED for failure of the prosecution to prove their guilt
beyond reasonable doubt;

34/ G.R. No. 201917, December 1,2016.


342 Daayata, et al. v. People, G.R. No. 205745, March 8, 2017.
343 People v. Claro, G.R. No. 199894, April 5, 2017.

344 People v. Besmonte, G.R. No. 103306, April 5, 1993.

345 Daayata, et al. v. People, G.R. No. 205745, March 8, 2017.

346 Maamo v. People, G.R. No. 201917, December 1,2016.


DECISION Page 52
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
J(-----------------------------------------------------------------------------------------------------------------------J(
4. In Criminal Case Nos. 25942, 25943, and 25954, accused ESTER
H. TANCO-GABALDON is hereby ACQUITTED for failure of the
prosecution to prove her guilt beyond reasonable doubt;

5. In Criminal Case No. 25946, accused JOHN T. CUA is hereby


ACQUITTED for failure of the prosecution to prove his guilt beyond
reasonable doubt;

6. In Criminal Case Nos. 25953 and 25962, accused LILA DHAR


SHARMA is hereby ACQUITTED for failure of the prosecution to prove
his guilt beyond reasonable doubt;

7. In Criminal Case No. 25957, accused ANGEL CHUA is hereby


ACQUITTED for failure of the prosecution to prove his guilt beyond
reasonable doubt;

8. In Criminal Case No. 25960, accused EDGARDO C. OLANDEZ


is hereby ACQUITTED for failure of the prosecution to prove his guilt
beyond reasonable doubt; and

9. In Criminal Case No. 25961, accused FERNANDO ORENDEZ is


hereby ACQUITTED for failure of the prosecution to prove his guilt
beyond reasonable doubt.

As the acts or omission from which the civil liability might arise did not
exist, no civil liability may be assessed against the forenamed accused.

Accordingly, the hold departure orders issued against them by reason of


these cases are hereby LIFTED and SET ASIDE. The bonds herein accused
posted are RELEASED, subject to the usual accounting and auditing procedures.

Let these cases be ARCHIVED as to accused ANTONIO P. BELICENA


(Criminal Cases Nos. 25940 to 25962), who at present is mentally incapacitated
to stand the rigors of trial due to dementia; as well as to accused ANGEL
JIMENEZ (Criminal Case No. 25944), DELFIN POONIM (Criminal Case No.
25948), JOEL IGNACIO (Criminal Case No. 25949) and SANJA Y DALMIA
(Criminal Case No. 25958), who remain at large.

SO ORDERED.

MARYANN E. C US- MANALAC


Associ te Justice
DECISION Page 53
Crim. Cases Nos. 25940 to 25962
People v. Belicena, et al.
J{-----------------------------------------------------------------------------------------------------------------------J{

WE CONCUR:

~;.LAGOS
Associate Justice
Chairperson

ATTEST ATION

I attest that the conclusions in the above Decision had been reached in
consultation before the cases were assigned to the writer of the opinion of the
Court's Division.

~(R.L~OS
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division
Chairperson's Attestation, I certify that the conclusions in the above Decision
had been reached in consultation before the cases were assigned to the writer of
the opinion of the Court's Division.

You might also like