509 Phil. 540
CHICO-NAZARIO, J.:
Allegation no. 1: "No accounting of rentals of the school facilities."After evaluating the report of the COA auditors, the Office of the Ombudsman-Visayas was convinced that allegations no. 1 to no. 4 were duly substantiated while the rest of the allegations were not. It found prima facie case of five (5) counts of Malversation of Public Funds against petitioner on the proceeds of the sale of the school's old newspapers on five occasions, i.e., on 15 March 1993, 01 September 1997, 02 December 1997, 11 December 1997 and 07 January 1998. It also found prima facie evidence for violations of Section 3(e) of Republic Act No. 3019, two (2) counts for the alleged irregularity in the purchase of school supplies, as evidenced by the purchase orders issued by petitioner dated 09 July 1997 and 16 July 1997, and another three (3) counts in relation to the assessment for membership fees of the Girl and Boy Scouts of the Philippines, which was in excess of the rates authorized under the Department of Education Culture and Sports Order No. 27. Petitioner's co-respondent, Mr. Nestor Robles, Supply Officer of the said school, was also found to have committed four (4) counts of Malversation of Public Funds in relation to his failure to account for the proceeds of the rentals of the school facilities. It docketed the criminal case as OMB-VIS-CRIM-98-0811. Based on the same findings the Office of the Ombudsman also filed an administrative case against petitioner which was docketed as OMB-VIS-ADM-98-0617.
COA findings disclosed that no official receipt (OR) was issued by the school from the rentals of its facilities and as such no recording were reflected in the books.
Allegation no. 2: "Money from the sale of old newspapers was not remitted to the school trust funds but pocketed by Dr. Benita Osorio' - Proceeds from the sale of old newspapers totaling P2,621.75 were not receipted, recorded and accounted for in the books of the agency, instead these were allegedly turned over to the school principal.
Allegation no. 3: "Practice ready-made bidding with supplier of school-needed materials" - Supplies and materials were purchased from the same supplier and were delivered before the canvass papers were prepared, thereby casting doubts as to the regularity of the procurement.
Allegation no. 4: "Double mandatory collection of BSP and GSP membership of all students of BNHS, and not all contribution were remitted to BSP and GSP but pocketed by Dr. Benita Osorio" -
(i) students were assessed for membership fees of Girl and Boy Scouts of the Philippines in excess of the rates authorized by DECS Order No. 27 and regardless of gender. The total amount irregularly collected was P202,282.00.
(ii) An additional fee of P1.00, or a total of P698 was collected from the fourth year students in the school year 1997-1998 without a stated purpose and authority from the DECS. Further, the donation paid by all students for the PNRC was in excess of the rate authorized by the DECS and actually remitted to the PNRC, resulting in excessive collection of P15,810.00.
Allegation no. 5: "Money of the school canteen was treated as her personal money" - Although recorded in the books as Trust Liability, collections from the canteen operations were not remitted intact, instead, daily expenses/purchases were deducted therefrom. Likewise, expenses incurred for the canteen operations totaling P269,890.92 were not recorded in the books. Further, a cash book was not maintained to record the total sales and expenses incurred during the day, hence, the actual sales for the day could not be ascertained.
Allegation no. 6: "Conspiring with treasure hunters in digging under main school building for Yamashita treasures" - No adverse findings.
Allegation no. 7: "Falsification of travel document to claim representation allowance" - This allegation could not be confirmed because the amount of daily per diem claimed was in accordance with existing regulations.
Allegation no. 8: "Other improper acts" - MOOE (Maintenance and Other Operating Expenses) funds were utilized in the purchase of construction materials totaling P82,717.75 for the construction of a modern guardhouse, in violation of Section 145 of GAAM, Vol. I, while the beautification projects costing P43,349.50 were given priority instead of the repair of the dilapidated windows and classrooms, resulting in the wasteful utilization of government funds.
1. Respondents committed abuse of discretion when it ruled that they no longer needed to conduct clarificatory hearing considering that the conduct of the same is discretionary on their part.In a decision dated 13 December 2002, the Court of Appeals dismissed the petition and affirmed in toto the Resolution dated 12 January 2001, as well as the order dated 17 July 2001 of the Ombudsman.
2. Respondent committed abuse of discretion in filing the questioned information considering that there is want of evidence establishing probable cause against herein petitioner.
1. Whether the Court of Appeals is correct in ruling that the Honorable Office of the Ombudsman did not commit any grave abuse of discretion when it opted not to conduct a clarificatory hearing in the case of herein petitioner.At the outset, it must be pointed out that the remedy availed by petitioner is flawed. The title of this petition shows that petitioner filed the petition under Rule 45 of the Rules of Court. The remedy from resolutions of the Ombudsman in preliminary investigations of criminal cases is a petition for certiorari under Rule 65.
2. Whether the Court of Appeals erred in ruling that the other issues raised by herein petitioner on certiorari are purely questions of evidence and not of law.
On allegation no. 2 above, the evidence on record tends to support a well-founded belief that the crime of Malversation of Public Funds, on five (5) counts, was committed and that herein respondent Dr. Benita F. Osorio is guilty thereof.On the indictment for violations of Section 3(e) of Rep. Act No. 3019, it ruled:
In spite of the strong protestation by respondent Osorio against accusation that she received the proceeds from the sale of the school's old newspapers, existing documentary evidence loudly tells however that she must have actually received such proceeds. She had allowed one Pergentina Baay to go out (of school premises) and to sell old newspapers as shown by her written request for the purpose and an approved gate pass (Annexes I-1 & I-2, COA Report, pp. 153-154, records). This in fact she has admitted though allegedly on only two occasions. Her denials that she never received from Mrs. Baay the newspaper proceeds and that she never bothered to ask about the same allegedly because she was made to understand it would be used to purchase floor wax, library ID cards and others, are simply unbelievable under the normal course of events given the circumstances of this case. The said Mrs. Baay is just a mere school utility worker. The respondent, on the other hand, is the school principal who is naturally expected to have asked about the proceeds from the newspapers the sale of which she had authorized. Mrs. Baay could not have kept for herself such proceeds knowing that her selling the newspapers was with the knowledge and authority of the respondent principal. Logic, therefore, tells us that subject proceeds were turned over to and received by the respondent contrary to her disclaimer.
. . .
There were several occasions (i.e., on March 15, 1993, September 01, 1997, December 02, 1997, December 11, 1997 and January 07, 1998) that said Mrs. Baay had sold newspapers of the school as disclosed in the above-mentioned COA Report. Since the audit examination found no record of receipt of such proceeds in the books of accounts of the school, it is only logical to presume that on every such occasion the respondent had put to her personal use the said proceeds.[6]
On allegation no. 3, probable cause exists to warrant an indictment for Violation of Sec. 3(e) of R.A. No. 3019, as amended, on two (2) counts, against respondent Dr. Benita F. Osorio.With these opposing pieces of evidence adduced by the Office of the Ombudsman-Visayas and the petitioner, we believe that the former did not gravely abuse its discretion when it found probable cause against petitioner.
Both respondents Dr. Benita F. Osorio and Nestor Robles in effect contended that their school has a PBAC (Pre-qualification, Bids and Awards Committee) which conducts the bidding through which system the school's procurements are made, hence, not being members of said committee, they should not be held liable for whatever irregularity in the purchases of the school. This argument holds no water, especially for respondent Osorio, under the present case. The irregularity alleged to have marked the school's purchase transactions is the manner by which such transactions, were made to appear to have been legally undertaken through personal canvass in order to favor a particular supplier. It is therefore irrelevant whether or not the herein respondents are members of the PBAC, because there was no bidding to talk about in the questioned transactions. Further, the transactions referred to are those made under the incumbency of the present Supply Officer Hilaria E. Hora, not those during the time of respondent Robles as then Supply Officer. Hence, the respondents' emphasis on transactions purportedly regularly entered into during respondent Robles's time as Supply Officer has no bearing on the allegation against them.
There is enough evidence to sustain the foregoing allegation as against respondent Osorio. It adequately appears from the evidence on record that purchases for school supplies/materials were made directly from certain favored supplier/s without the benefit of bidding. There is no other manner of concluding it but this way when herein respondent Dr. Benita F. Osorio issued Purchase Order No. 29 dated July 09, 1997, when in fact the items (construction materials) with a total price of P3,755.00 subject thereof were already earlier delivered to the school as per unnumbered Delivery Receipt of Butalid Traders dated June 17, 1997 and inspected on the same date the said PO (purchase order) was issued as per Inspection Report dated July 09, 1997, duly noted by the same respondent. Additional documentary evidence consisting of Purchase Order No. 030 dated July 16, 1997, for certain items with a total price of P3,575.00 and three (3) Delivery Receipts of Tantrade Corporation dated June 3, 5 & 18, 1997, which similarly indicate an apparent irregularity as those first mentioned, would show another instance of anomalous transaction.
On allegation no. 4, there is prima facie evidence against respondent Dr. Benita F. Osorio for Violation of Sec. 3(e) of R.A. No. 3019, as amended (otherwise known as The Anti-Graft and Corrupt Practices Act), on three (3) counts.
(i) DECS Order No. 27, s. 1995, dated May 24, 1995 (Annex M. COA Report, supra), very clearly specifies the amounts of contributions for the Boy Scouts and Girl Scouts of the Philippines at P20.00 and P25.00, respectively, among others, allowed to be collected during enrollment period. Notwithstanding this definite directive, the herein respondent Principal issued two (2) Memoranda dated March 14, 1996 and March 10, 1997 re: Enrollment Guidelines for SY 1996-1997 & SY 1997-1998, respectively, instructing the collection of fees of, among others, P26.00 (BSP) and P31.00 (GSP) for SY 1996-1997 and P30.00 (BSP) and P31.00 (GSP) for SY 1997-1998 (Annexes O-1 to 3 & P-1 to 3, respectively, COA Report, pp. 168-173, records). The foregoing issuance of the respondent in absolute defiance of the specific directive of the DECS Order mentioned, demonstrates evident bad faith or gross inexcusable negligence causing undue injury to the students of Dr. Cecilio Putong National High School arising from the collection of contributions from them in excess of the amounts legally allowed.[7]
Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial.The foregoing provision sets forth the purpose of preliminary investigation which is to determine whether there is a sufficient ground to engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof. Subsection (e) of Section 3 and of the same rule provides:
(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a witness. The parties can be present at the hearing but without the right to examine or cross-examine. They may, however, submit to the investigating officer questions which may be asked to the party or witness concerned.In accordance with Section 4 of Rule 112 of the Rules of Court, the investigating prosecutor shall prepare the resolution and information if he finds cause to hold the respondent for trial. He shall certify under oath that he, or as shown by the record, an authorized officer, has personally examined the complaint and his witnesses, that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof. It is the call of the investigating prosecutor, in the exercise of his sound discretion, whether to conduct a clarificatory hearing or not. As correctly pointed out by the Court of Appeals, the term "may" under Subsection (e) of Section 3 of Rule 112 is merely permissive and operates to confer discretion upon the investigating prosecutor to conduct a clarificatory hearing or not.[8] If he believes that the evidence before him is sufficient to support a finding of probable cause, he may not hold a clarificatory hearing. As held in Webb v. De Leon:[9]
. . . The decision to call witnesses for clarificatory questions is addressed to the sound discretion of the investigator and the investigator alone. If the evidence on hand already yields a probable cause, the investigator need not hold a clarificatory hearing.Probable cause, for the purpose of filing a criminal information, has been defined as such facts as are sufficient to engender a well-founded belief that a crime has been committed and that respondent is probably guilty thereof.[10] It is a reasonable ground of presumption that a matter is, or may be, well founded, such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so.[11] The term does not mean "actual and positive cause" nor does it import absolute certainty.