511 Phil. 682
YNARES-SANTIAGO, J.:
That sometime in July 1990, or for sometime prior or subsequent thereto, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, accused Jose Ting Lan Uy, Jr., a public accountable officer, being the Treasurer of National Power Corporation (NAPOCOR), Ernesto Gamus and Jaime Ochoa, both public officers being the Manager of the Loan Management and Foreign Exchange Division (LOMAFED) and Foreign Trader Analyst, respectively, also of NAPOCOR, and accused Raul Gutierrez, alias Raul Nicolas, alias George Añonuevo, alias Mara Añonuevo, a private individual being a foreign exchange trader, said public officers taking advantage of their official positions, with grave abuse of authority and committing the offense in relation to their office, conspiring, confederating and mutually helping one another, with their private co-accused, did then and there willfully, unlawfully and feloniously falsify or cause to be falsified the NPC's application for managers checks with the Philippine National Bank (PNB), NPC Branch in the total amount of ONE HUNDRED EIGHTY THREE MILLION EIGHT HUNDRED FIVE THOUSAND TWO HUNDRED NINETY ONE PESOS and TWENTY FIVE CENTAVOS (P183,805,291.25), Philippine Currency, intended for the purchase of US dollars from the United Coconut Planters Bank (UCPB), by inserting the account number of Raul Gutierrez SA-111-121204-4, when in truth and in fact as the accused well knew that the Payment Instructions (PI) when signed by the NAPOCOR authorities did not indicate the account number of Raul Gutierrez, thereby making alteration or intercalation in a genuine document which changes its meaning, and with the use of the said falsified commercial documents, accused succeeded in diverting, collecting and receiving the total amount of ONE HUNDRED EIGHTY THREE MILLION EIGHT HUNDRED FIVE THOUSAND TWO HUNDRED NINETY ONE PESOS AND TWENTY FIVE CENTAVOS (P183,805,291.75), Philippine Currency from the National Power Corporation, which they thereafter malverse, embezzle, misappropriate and convert to their own personal use and benefit to the damage and prejudice of the National Power Corporation in the aforementioned sum.Upon arraignment, Gamus, Uy and Ochoa pleaded not guilty to the charge, while Gutierrez has remained at large.
CONTRARY TO LAW.
Trial on the merits thereafter ensued. On May 28, 2002, the Sandiganbayan rendered its Decision,[4] the dispositive portion of which reads:
- That accused Uy at the time stated in the information was a Treasurer at the NPC;
- That accused Ernesto Gamus was at the time mentioned in the information was (sic) the Manager of Loan Management and Foreign Exchange Division (LOMAFED);
- That accused Jaime Ochoa was the Senior Financial Analyst, LOMAFED, at the time mentioned in the information;
- That accused Gamus does not have any custody to (sic) public funds;
- That accused Ochoa's position as Sr. Financial Analyst did not require him to take custody or control of public funds;
- That the application forms for cashier's check or Manager's check are not accountable forms of the NAPOCOR.[3]
WHEREFORE, premises considered, accused Jaime B. Ochoa is hereby found GUILTY beyond reasonable doubt of the crime of Malversation thru falsification of Commercial Document and is sentenced to suffer the penalty of reclusion perpetua and to pay a fine equal to the amount malversed which is ONE HUNDRED EIGHTY THREE MILLION EIGHT HUNDRED FIVE THOUSAND TWO HUNDRED NINETY ONE PESOS AND TWENTY FIVE CENTAVOS (P183,805,291.25) solidarily with accused Jose Ting Lan Uy, Jr. Accused Ochoa shall also suffer the penalty of perpetual disqualification. Costs against the accused.Aggrieved, Ochoa interposed this appeal alleging that the Sandiganbayan erred in –
On the ground of reasonable doubt, accused JOSE TING LAN UY, Jr. is hereby ACQUITTED of Malversation of Public Funds thru Falsification of Commercial Document. However, because of preponderance of evidence, he is CIVILLY LIABLE for the damages suffered by the NPC in the amount of ONE HUNDRED EIGHTY THREE MILLION EIGHT HUNDRED FIVE THOUSAND TWO HUNDRED NINETY ONE PESOS AND TWENTY FIVE CENTAVOS (P183,805,291.25) solidarily with accused Jaime Ochoa. The Hold Departure Order against the accused embodied in this Court's Resolution dated April 18, 2002 is recalled.
Let an alias warrant of arrest be issued against Raul Gutierrez, alias Raul Nicolas, alias George Añonuevo, alias Mara Añonuevo with last known address at 1348 A. Mabini Street, Ermita, Manila or Suite 603 VIP Building, Roxas Boulevard, Manila.
SO ORDERED.[5]
The factual antecedents of the case, as summed by the Sandiganbayan, are not disputed by the parties:
- convicting him based on the allegations in the information;
- admitting and considering his alleged sworn statements;
- considering the alleged transcripts of stenographic notes and the NBI Report.[6]
In July of 1990, the National Power Corporation ("NPC") became embroiled in a controversy involving the disappearance of P183,805,291.25 of its funds which were originally on deposit with the Philippine National Bank, NPC Branch ("PNB") but were subsequently used to purchase two (2) managers'/cashier's checks (the first check was in the amount of P70,000,000.00 while the second was for P113,805,291.25) in order to comply with its loan obligations to the Asian Development Bank ("ADB"). As NPC's debt in favor of ADB was in yen, NPC was obligated to follow an intricate and circuitous procedure of buying US dollars from a local bank (in this case, United Coconut Planters Bank or UCPB T.M. Kalaw Branch), which local bank was supposed to remit the US dollars to an off-shore bank. This off-shore bank (in this case, the Credit Lyonnais, New York) was then supposed to remit the yen equivalent of the US dollars to a third bank (in this case, the Bank of Japan, Tokyo Branch) which would then credit the funds to the account of the ADB. The contracts of NPC with the concerned banks (embodied in three [3] "Payment Instructions") included a "value date" (which was July 13, 1990), the mere arrival of which would trigger the above-mentioned procedure, culminating in the payment to ADB of the NPC obligation in the foreign currency agreed upon.The prosecution theorizes that the accused diverted the funds covered by the two PNB Manager's checks by falsifying a commercial document called an "Application for Cashier's Check" (ACC) by inserting an account number (A/C #111-1212-04) of a private individual after the name of the payee, UCPB, T.M. Kalaw Branch. It claims that NPC did not authorize the insertion considering that the Payment Instruction (PI) issued by NPC instructing PNB to prepare a Manager's check to be charged to NPC's savings account did not contain any account number. Through the insertion, the accused allegedly succeeded in diverting the funds from the UCPB, T.M. Kalaw Branch in favor of Raul Gutierrez @ Raul Nicolas @ George Añonuevo @ Mara Añonuevo, who is still at large.
On value date, per routing procedure, Credit Lyonnais (the second bank) remitted Japanese Yen 1,143,316,130.00 to the Bank of Japan, Tokyo Branch. Likewise, per routing procedure, UCPB T.M. Kalaw Branch was supposed to have remitted on said value date the amount of US$7,740,799.80. UCPB T.M. Kalaw, however, despite the fact that the PNB had already issued two (2) manager's/cashier's checks ("Manager's check" for brevity) for such purpose, did not make the agreed remittance to Credit Lyonnais, so Credit Lyonnais received no payment for the funds it had remitted to the Bank of Japan, Tokyo. Both the State and the accused have offered explanations for the failure of UCPB, T.M. Kalaw Branch to remit the dollar equivalent of P183,805,291.25 to Credit Lyonnais. Both explanations, naturally, were diametrically opposed.[7]
Appellant insists that he could not be convicted under the allegations in the information without violating his constitutional right to due process and to be informed of the accusation against him. He points out that the information alleges willful and intentional commission of the acts complained of while the judgment found him guilty of inexcusable negligence amounting to malice.
a.] The offender is a public officer;b.] He has the custody or control of funds or property by reason of the duties of his office;c.] The funds or property involved are public funds or property for which he is accountable; andd.] He has appropriated, taken or misappropriated, or has consented to, or through abandonment or negligence, permitted the taking by another person of, such funds or property.[8]
Even on the putative assumption that the evidence against petitioner yielded a case of malversation by negligence but the information was for intentional malversation, under the circumstances of this case his conviction under the first mode of misappropriation would still be in order. Malversation is committed either intentionally or by negligence. The dolo or the culpa present in the offense is only a modality in the perpetration of the felony. Even if the mode charged differs from mode proved, the same offense of malversation is involved and conviction thereof is proper.[12]The question of whether or not an information charging the commission of the crime by means of deceit will preclude a conviction on the basis of negligence is neither novel nor of first impression. In Samson v. Court of Appeals, et al.,[13] we ruled that an accused charged with willful or intentional falsification can validly be convicted of falsification through negligence, thus:
While a criminal negligent act is not a simple modality of a willful crime, as we held in Quizon vs. Justice of the Peace of Bacolor, ... but a distinct crime in itself, designated as a quasi offense in our Penal Code, it may however be said that a conviction for the former can be had under an information exclusively charging the commission of a willful offense, upon the theory that the greater includes the lesser offense. This is the situation that obtains in the present case. Appellant was charged with willful falsification but from the evidence submitted by the parties, the Court of Appeals found that in effecting the falsification which made possible the cashing of the checks in question, appellant did not act with criminal intent but merely failed to take proper and adequate means to assure himself of the identity of the real claimants as an ordinary prudent man would do. In other words, the information alleges acts which charge willful falsification but which turned out to be not willful but negligent. This is a case covered by the rule when there is a variance between the allegation and proof, and is similar to some of the cases decided by this Tribunal.In People v. Consigna, et al.,[14] we ruled that the afore-stated rationale also applies to the felony of malversation, that is, that an accused charged with willful malversation, in an information containing allegations similar to the present case, can be validly convicted of the same offense of malversation through negligence where the evidence sustains the latter mode of perpetrating the offense.
....
The fact that the information does not allege that the falsification was committed with imprudence is of no moment for here this deficiency appears supplied by the evidence submitted by appellant himself and the result has proven beneficial to him. Certainly, having alleged that the falsification has been willful, it would be incongruous to allege at the same time that it was committed with imprudence for a charge of criminal intent is incompatible with the concept of negligence.
Section 12. (1). Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.The "investigation" under the above-quoted provision refers to a "custodial" investigation where a suspect has already been taken into police custody[15] and the investigating officers begin to ask questions to elicit information and confessions or admissions from the suspect.[16] More specifically –
Custodial investigation involves any questioning initiated by law enforcement authorities after a person is taken into custody or otherwise deprived of his freedom of action in any significant manner. And, the rule begins to operate at once as soon as the investigation ceases to be a general inquiry into an unsolved crime and direction is then aimed upon a particular suspect who has been taken into custody and to whom the police would then direct interrogatory question which tend to elicit incriminating statements.[17]Succinctly stated, custodial investigation refers to the critical pre-trial stage when the investigation ceases to be a general inquiry into an unsolved crime but has begun to focus on a particular person as a suspect.[18] Such a situation contemplated has been more precisely described thus where –
After a person is arrested and his custodial investigation begins a confrontation arises which at best may be termed unequal. The detainee is brought to an army camp or police headquarters and there questioned and cross-examined not only by one but as many investigators as may be necessary to break down his morale. He finds himself in a strange and unfamiliar surrounding, and every person he meets he considers hostile to him. The investigators are well-trained and seasoned in their work. They employ all the methods and means that experience and study has taught them to extract the truth, or what may pass for it, out of the detainee. Most detainees are unlettered and are not aware of their constitutional rights. And even if they were, the intimidating and coercive presence of the officers of the law in such an atmosphere overwhelms them into silence....[19]Clearly, therefore, the rights enumerated by the constitutional provision invoked by accused-appellant are not available before government investigators enter the picture.[20] Thus we held in one case[21] that admissions made during the course of an administrative investigation by Philippine Airlines do not come within the purview of Section 12. The protective mantle of the constitutional provision also does not extend to admissions or confessions made to a private individual,[22] or to a verbal admission made to a radio announcer who was not part of the investigation,[23] or even to a mayor approached as a personal confidante and not in his official capacity.[24]