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We resolve the petition for certiorari^[1] filed under Rule 65 of the Rules of Court by petitioner Vilma N. Clave, assailing the Resolution dated December 30, 2010^[2] and the Order dated December 13, 2012^[3] of the Office of the Ombudsman-Visayas (Ombudsman) in OMB-V-C-09-0415-L. The assailed rulings found probable cause to formally charge Clave for the crime of malversation of public funds through the falsification of a public document.^[4]

THE FACTUAL ANTECEDENTS

Clave was the General Manager of the Miagao Water District (MWD) in Iloilo from November 4, 2003, until she resigned on November 3, 2006. At first, Clave hesitated to accept the position as she had been employed with the San Jose Del Monte City Water District in Bulacan for almost six (6) years, and her family had permanently settled there. She nevertheless accepted the offer on the assurance from the municipal mayor and the MWD's management that she would be given financial assistance in relocating her family.

At that time, the MWD could not immediately shoulder the relocation because of its financial condition, so its management advised Clave to secure a loan from the Rural Bank of Miagao, Iloilo. With the assurance from the board of directors that the MWD would shoulder the payment of the loan, Clave secured a loan from the bank.

The MWD board of directors used their per diems and amounts supposedly allocated for seminar expenses to initially pay the loan, Clave also used her personal money for this purpose. Thereafter, the MWD, through its board, allegedly requested the local government for financial assistance to recover the amounts "advanced" by Clave and the MWD directors.^[5]

On August 3, 2005, the Municipality of Miagao, Iloilo, issued to MWD a PNB Check for Fifty Thousand Pesos (P50,000.00).^[6] According to Clave, the MWD directors directly instructed her to issue Official Receipt No. 716 (OR No. 716) indicating that the MWD received the total amount of the check,^[7] but the duplicate copy of the receipt would only indicate the partial payment of one of the members of the board amounting to Three Hundred Pesos (P300.00).^[8] This transaction was entered in the MWD's records as reflected in the duplicate copy of OR No. 716.^[9]

A few weeks after Clave resigned from the MWD, the audit team tasked by the Commission on Audit (COA) issued Audit Observation Memorandum No. 2006-01 (2005) dated November 21, 2006 expressing the observation that OR No. 716 had been falsified and that the financial assistance of P50,000.00 could have been misappropriated.^[10] The incumbent general manager then forwarded the findings of the audit team to Clave. In turn, she explained that she was merely acting under the direct instructions of the MWD board of directors, and that they eventually explained to the municipal mayor - through her letter of July 5, 2006 - how the financial assistance was spent.^[11]

On September 23, 2009, the COA filed a criminal complaint against Clave for falsification of public document and misappropriation of public funds.

Without any explanation from Clave but after sending her two notices to file her counter-affidavit, the Ombudsman issued the first assailed resolution finding probable cause that Clave is guilty of malversation through the falsification of OR No. 716. It held that she committed falsification when she knowingly issued a different duplicate copy of an acknowledgment receipt worth P300.00 when the original receipt was actually for the amount of P50,000.00. These discrepancies led the Ombudsman to assume that she misappropriated the difference. It accordingly filed an information with the appropriate court.

On Clave's motion,^[12] the Regional Trial Court, Branch 61 of Guimbal, Iloilo (RTC), ordered the Ombudsman to conduct a reinvestigation, this time with Clave's participation in the preliminary investigation.^[13]

After the reinvestigation and after considering Clave's explanation and the settlement of the P50,000.00, the Ombudsman maintained its finding of probable cause. To the Ombudsman, Clave failed to present any corroborating evidence to prove that indeed she had merely been acting under the instructions of the MWD's directors.

Moreover, the municipal mayor's alleged knowledge of the deviation of the municipality's financial assistance, as well as the alleged "honest mistake" of not recording the transaction in the MWD books placed Clave in a more dubious position. To the Ombudsman, her return of the P50,000.00, would only be a mitigating circumstance if appreciated at all during trial.

Upon submission of the Ombudsman's findings, the RTC ordered the revival of the information initially filed against Clave, and issued the corresponding warrant for her arrest.^[14] This warrant, however, was never implemented since Clave, after her resignation, has been outside Philippine jurisdiction, working as an Overseas Filipino Worker in Dubai, UAE.

THE PETITION

In her present petition, Clave cites the following grounds as errors:

(1) The Ombudsman failed to appreciate that there had already been a settlement of the P50,000.00 even before the complaint-affidavit was filed by the COA.

(2) The Ombudsman did not consider: the letter addressed to the municipal mayor, which had the concurrence of all the members of the MWD board of directors, and Clave's other documentary evidence, all of them submitted to prove that the financial assistance from the municipality was duly accounted for and was not used for her personal use, gain or benefits.

(3) The Ombudsman erred in not dismissing the criminal complaint against Clave for absence or lack of probable cause.

On the first assignment of error, Clave claims that the Notice of Charge/s sent by the COA gave her the opportunity to settle the amount she was accountable for.^[15] On June 23, 2008, evidenced by an official receipt issued by the MWD, Clave paid the amount of P50,000.00 to the MWD to cover the amount supposedly misappropriated.^[16] She posits that had the MWD informed the COA of this final settlement, the latter would not have filed any criminal complaint in the first place.

On the second assignment of error, Clave narrates that the municipal mayor called for a meeting to discuss where exactly the P50,000.00 financial assistance went. At this meeting, the letter (duly signed by Clave and all of the MWD's directors) was submitted, which letter explained where the municipal payment went. The submission satisfied the municipal mayor who considered the issue over the financial discrepancy already settled. Again, this letter and the meeting with the municipal mayor would have already settled the issue had the MWD disclosed these circumstances to the COA.

Clave further suggests that the MWD management probably concealed these matters because they could be used as evidence that would place the directors in a controversial situation similar to hers.

On the third assignment of error, Clave faults the Ombudsman for not giving appropriate consideration to the letter which should serve as sufficient corroborating evidence to prove that she had acted in good faith as she was merely acting under the direct instruction of the MWD directors.

In addition, Clave argues that in issuing the original and the duplicate copies of OR No. 716, there was no simulation of facts. Both receipts reveal real and true facts as to the stated amounts and as to the name of the payees. The original copy reflects the true amount of P50,000.00 received from the Municipality of Miagao, Iloilo. On the other hand, the duplicate copy reflects the true amount of P300.00 as the amount actually received as partial payment of one of the directors for her water bill.

Lastly, Clave points out that there was no intent to hide the actual use of the money the MWD received from the municipality. There was transparency as to how and where the amount was spent. Likewise, no cash shortage was reported by the COA; the government had not suffered any damage or prejudice.

THE OMBUDSMAN'S COMMENT

The Ombudsman, represented by the Office of the Solicitor General (OSG), counters by saying that the assailed resolution and order were based on evidence; hence, no grave abuse of discretion can be attributed in arriving at its ruling.

The OSG submits that the Ombudsman did not err in its finding of probable cause for the crime of malversation of public funds through the falsification of a public document because all the elements of the charged crime were duly backed up by prima facie evidence on record.

At any rate, the OSG suggests that the matters that Clave raised pose factual issues that would necessarily require the consideration of evidentiary matters at a full blown trial. In this manner, the parties would be given the opportunity to adduce their respective evidence.

As to Clave's defense of good faith, the OSG submits that the "instruction" of the board of directors to write different entries in the original and duplicate copies of OR No. 716, assuming this to be true, can by no means be considered lawful. As an accountable officer, Clave ought to have known that the "order" emanating from the MWD directors was wrong and highly irregular.

With respect to the explanation on where the money was spent and the subsequent settlement of the P50,000.00, the OSG posits that neither would exonerate Clave from criminal liability. The restitution of the amount misappropriated, if at all, would only affect the civil aspect of the crime. The letter to the municipal mayor, on the other hand, was a mere afterthought and a belated attempt to make it appear that there were actual and lawful expenditures using the money that had been misappropriated. The OSG points out that a cursory examination of the letter would readily show that not all the items it reflected were authorized expenses and were backed up by the required official receipts.

OUR RULING

We find the present petition unmeritorious.

Preliminary Considerations

In reviewing the Ombudsman's exercise of its constitutionally mandated powers, we bear in mind that certiorari is an extraordinary prerogative writ that is not demandable as a matter of right.^[17] For us to even consider a petition for certiorari questioning the Ombudsman's findings of probable cause, the petition must clearly and convincingly show that the Ombudsman gravely abused its discretion, thus warranting the exercise of our jurisdiction under the Constitution and the Rules of Court.^[18] In this exercise, the justiciable issue to be resolved is only the presence or absence of grave abuse of discretion.

The limited recourse to this Court is fundamentally based on the laws creating the Ombudsman,^[19] and the absence of any other instrumentality of the government exercising the same function insofar as criminal cases before the Sandiganbayan are concerned. Simply put, there is no other government body that determines probable cause against respondents who are to be indicted before the Sandiganbayan.^[20] Neither does the Court exercise this function when the matter is elevated via a petition for certiorari.

In the light of these considerations, we have developed a policy of not interfering with the Ombudsman's findings of probable cause, save in the cases when the Ombudsman's grave abuse in the exercise of its discretion is clear. The general rule is that the courts should not interfere when the Ombudsman exercises its plenary investigative and prosecutorial powers. As explained in Esquivel v. Ombudsman:^[21]

The Ombudsman is empowered to determine whether there exists reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof and, thereafter, to file the corresponding information with the appropriate courts. Settled is the rule that the Supreme Court will not ordinarily interfere with the Ombudsman's exercise of his investigatory and prosecutory powers without good and compelling reasons to indicate otherwise. Said exercise of powers is based upon the constitutional mandate and the court will not interfere in its exercise. The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman, but upon practicality as well. Otherwise, innumerable petitions seeking dismissal of investigatory proceedings conducted by the Ombudsman will grievously hamper the functions of the office and the courts, in much the same way that courts will be swamped if they had to review the exercise of discretion on the part of public prosecutors each time they decided to file an information or dismiss a complaint by a private complainant.^[22]

Thus, absent any good and compelling reason, specifically the presence of grave abuse of discretion, courts will leave the Ombudsman alone in undertaking its tasks. But then again, where there is an allegation of grave abuse of discretion, the Ombudsman's act cannot escape judicial scrutiny.

From this point, we may now look into the Ombudsman's acts only to review whether grave abuse of discretion is shown.^[23] If, indeed, a petitioner has shown that the Ombudsman capriciously and whimsically exercised its judgment in determining the existence of probable cause, we may then accordingly issue a writ of certiorari to nullify its findings on the ground that these were made in excess of jurisdiction.

The Ombudsman is hardly guilty of
any grave abuse of discretion in
finding probable cause to indict
Clave of malversation of public
funds through the falsification of a
public document

On the petitioner lies the burden of demonstrating all the facts essential to establish the right to a writ of certiorari.^[24] He must discharge the burden of proving grave abuse of discretion on the part of the Ombudsman in accordance with the definition and standards set by law and jurisprudence.^[25] In other words, Clave, as the petitioner in this case, must prove with sufficient evidence her allegations and claims that the Ombudsman gravely abused its discretion in finding probable cause.

During a preliminary investigation, the Ombudsman merely determines whether probable cause exists. It does not touch on the issue of guilt or innocence of the accused as it is not its function to rule on such issue.^[26] All that it does is to weigh the evidence presented together with the counter-allegations of the accused and determine if there was enough reason to believe that a crime has been committed and that the accused is probably guilty thereof.^[27]

In Galario v. Office of the Ombudsman,^[28] we explained that a finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and there is enough reason to believe that it was committed by the accused.^[29] The term is merely based on opinion and reasonable belief.^[30]

In Casing v. Ombudsman,^[31] we held that substantial evidence — i.e., relevant evidence as a reasonable mind may accept as adequate to support a conclusion — must support the Ombudsman's ruling for its decision to stand because probable cause is concerned merely with probability and not with absolute or even moral certainty.^[32]

From all these, we gather that in order to arrive at its finding of probable cause, the Ombudsman only has to find enough relevant evidence to support its belief that the accused most likely committed the crime charged. Otherwise, badges of grave abuse of discretion can be attributed to its ruling.^[33]

After reviewing the records of this case, we cannot conclude that the Ombudsman has been guilty of grave abuse in finding that Clave could possibly be guilty of the complex crime of malversation through the falsification of a public document. The Ombudsman in this case determined probable cause, not once but twice, as the trial court ordered it to review the case again before the warrant of arrest was issued.

In the present case, all the Ombudsman had to do was to compare the original and the duplicate copy of OR No. 716 to immediately appreciate that Clave indicated different amounts therein. It is likewise basic common sense that a duplicate copy of a document should reflect what appears in the original. The point of having a duplicate copy is for both parties to a transaction to have the needed documents to back up their respective records so that when a subsequent examination is conducted, their records will tally. True enough, when the COA conducted its audit of the municipality and the MWD, it immediately saw the discrepancy with regard to OR No. 716.

The Ombudsman obviously did not accord significant merit to Clave's claim that she was merely acting under the direct instruction of the MWD board of directors. As pointed out by the OSG, the instruction to write different entries in the original and duplicate copy of OR No. 716 is patently wrong. To our mind, a person who blindly obeys a patent unlawful order certainly cannot claim good faith.

As for the more serious charge of malversation, we find that Clave failed to prove her allegation that the loan she applied for would be shouldered by the MWD. What actually appears in the MWD board resolution to justify the request for financial assistance from the municipality are prior obligations of the MWD with the Iloilo Electric Cooperative. If the financial assistance really intended to cover the loan for Clave's relocation expenses, it appears strange that this was not indicated in the MWD's request.

Moreover, by issuing a duplicate copy showing that the MWD received only P300.00 (when in fact it received P50,000.00), the clear intent was to show — per the MWD records — that it only received such amount. Hence, it was not difficult for the COA to conclude that the MWD received money that was not accounted for. These circumstances clearly suggest that the difference could have possibly been misappropriated.^[34]

All told, we agree with the findings of the Ombudsman that Clave could have misappropriated the financial allocation given to the MWD by issuing a false duplicate copy of OR No. 716. She, therefore, should stand charged for malversation through the falsification of a public document.

In arriving at this conclusion, we however, find it peculiar that the Ombudsman did not charge the MWD board of directors as well, given that Clave proved that they knew what was going on all along. In the letter explaining to the municipal mayor what happened to the financial assistance from the municipality, we note that this letter was duly concurred in by all the members of the board. Moreover, the duplicate copy of OR No. 716 was issued to one of the members of the board supposedly to reflect her partial payment for her water bill. Lastly, Clave alleged that the MWD directors were present during the meeting with the municipal mayor, and they all explained what really happened with the P50,000.00 financial allocation from the municipality.

Under the above circumstances, we do not find it out of place to suggest to the Ombudsman to likewise look into the participation of the MWD directors and to assess their possible criminal liability.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

Carpio, (Chairperson), Del Castillo, Mendoza, and Leonen, JJ., concur.

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^[1] With Application for a Temporary Restraining Order and a Writ of Preliminary Injunction.

^[2] Rollo, pp. 40-48; attached as ANNEX "A" of the petition.

^[3] Id. at 49-58; attached as ANNEX "B" of the petition.

^[4] Defined and punished under Article 217 in relation to Article 171, paragraphs 2 and 4 and Article 48 of the Revised Penal Code.

^[5] It must be noted, however, that the board resolution requesting for funds made no mention that the funds requested were to be used to cover the loan Clave applied for; rollo, p. 80: Board Resolution No. 011, attached as ANNEX "D" of the complaint-affidavit.

^[6] Id. at 81; PNB Check No. 00000067814, attached as ANNEX "E" of the complaint-affidavit.

^[7] Id. at 85, Miagao Water District Official Receipt No. 716, attached as ANNEX "I" of the complaint-affidavit.

^[8] Id. at 83, Duplicate Copy of Miagao Water District Official Receipt No. 716, attached as ANNEX "G" of the complaint-affidavit.

^[9] Id. at 82, Report of Collections and Deposits of Miagao Water District dated August 19, 2005, attached as ANNEX "F" of the complaint-affidavit.

^[10] Id. at 75, attached as ANNEX "B" of the complaint-affidavit.

^[11] This letter was with concurrence of the MWD board of directors; id. at 114-115, attached as ANNEX "A" of Clave's counter-affidavit.

^[12] Id. at 93-97, attached as ANNEX "I" of the petition.

^[13] Id. at 100, attached as ANNEX "J" of the petition.

^[14] Id. at 120, attached as ANNEX "O" of the petition.

^[15] Id. at 116, Notice of Charges No. 2007-01(05) dated March 28, 2007, attached as ANNEX "B" of Clave's counter-affidavit.

^[16] Id. at 119, Miagao Water District Official Receipt No. 7874, attached as ANNEX "D" of Clave's counter-affidavit.

^[17] Angeles v. Gutierrez, 685 Phil. 183, 193 (2012).

^[18] See: Section 1, Article VIII of the 1987 Constitution on judicial power, as well as Rule 65 of the Rules of Court on the review via a petition for certiorari of acts in the exercise of judicial and quasi-judicial functions for lack or excess of jurisdiction or for grave abuse of discretion amounting to lack to jurisdiction.

^[19] Constitution, Article XI, Sections 12 & 13; R.A. No. 6770, otherwise known as the Ombdusman Act of 1989, Sections 11(4)(a) & 15(1).

^[20] See P.D. No. 1606, as amended by R.A. No. 10660, Section 4.

^[21] 437 Phil. 702 (2002).

^[22] Id. at 711-712.

^[23] See Quarto v. Marcelo, G.R. No. 182848, October 5, 2011, 658 SCRA 580; Presidential Commission on Good Government v. Desierto, G.R. No. 139296, 23 November 2007, 538 SCRA 207; Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto, 415 Phil. 135 (2001).

^[24] People v. Sandiganbayan, 681 Phil. 90, 110 (2012), citing Corpuz v. Sandiganbayan, 484 Phil. 899 (2004).

^[25] Agdeppa v. Office of the Ombudsman, G.R, No. 146376, 23 April 2014, 723 SCRA 293, 332.

^[26] Ganaden v. Office of the Ombudsman, 665 Phil. 224, 231-232 (2011).

^[27] Id.

^[28] G.R. No. 166797, July 10, 2007, 527 SCRA 190.

^[29] Id. at 204.

^[30] Id.

^[31] 687 Phil. 468 (2012).

^[32] Id. at 477.

^[33] Grave abuse of discretion Implies a capricious and whimsical exercise of judgment tantamount to lack of jurisdiction. The Ombudsman's exercise of power must have been done in an arbitrary or despotic manner - which must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform the duty enjoined or to act at all in contemplation of law in order to exceptionally warrant judicial intervention, id. at 476. See also Sistoza v. Desierto, 476 Phil. 117 (2002) to show an instance when the Court held that the Ombudsman was guilty of grave abuse of discretion in its finding of probable cause.

^[34] See Zoleta v. Sandiganbayan, G.R. No. 185224, July 29, 2015 and People v. Pantaleon, 600 Phil. 186 (2009) where the Court found the accused guilty for the complex crime of malversation through the falsification of public documents.