504 Phil. 321
GARCIA, J.:
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 declared to be unlawful:The Information[3] against petitioner, filed before the Sandiganbayan and thereat docketed as Criminal Case No. 22830, alleged: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.
That on June 26, 1992, or sometime prior or subsequent thereto, in the Municipality of Bacoor, Cavite, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused Buencamino M. Cruz, a public officer being then the Municipal Mayor of Bacoor, Cavite and while in the performance of his official function, acting in evident bad faith, did then and there wilfully, (sic) unlawfully and criminally pay Kelly Lumber and Construction Supply the amount of Fifty Four Thousand Five Hundred Forty-Two Pesos and 56/100 (P54,542.56), Philippine Currency, despite the fact that said account had been previously paid by the Municipality, thus, causing undue injury to the Government in the amount aforestated.Upon arraignment, petitioner entered a plea of "Not Guilty". In time, trial ensued.
CONTRARY TO LAW.
The numerous, other alleged anomalies and irregularities fully detailed and outlined in said S.A.O. Report No. 93-28 did not appear to the Special Audit Team, as meriting prosecution of those who might have been guilty thereof. But, the same report strongly recommended prosecution as notwithstanding . . . the subsequent refund of the total amount of P54,542.56 from the supplier, Kelly Lumber . . . for the alleged double payment especially due . . . to the fact that the amount was not directly paid to the supplier but the Municipal Mayor, as shown in Exh. "1" for P150,000.00 and Exh. "H" for P20,000.00 and Exhs. "1-1" and "H-1" showing that the said two checks were actually encashed by the Municipal Mayor, respondent herein (See: p.192 of the S.A.O. Report No. 93-28). A painful examination of Exhs. "B" and "B-1" to "B-11" shows that although there was a total sum due of P31,198.01 and supported by documents under Disbursement Voucher No. 101-9201-194, they are really, only supported by documents showing the statement of the account thereof and yet Sales Invoice No. 131145 was not attached to support the voucher. Besides, said Sales Invoice No. 131145 had already been paid previously as shown by a photocopy of PNB Check No. 214785, dated January 30, 1992 (see. Exh. "B-2-A") which proves that payment was made upon the prior request of the accused Buencamino M. Cruz, and that the said amount of P21,041.56 had already been paid under the same Voucher No. 101-9201-194. Also Exhs. "E", ""E-1" to "E-7" show that under Disbursement Voucher No. 1163, dated June 26,1992, payment had been made together with other invoices, per PNB Check No. 197813 in the total sum of P150,000.00; whereas, the same account of P33,501.00 had already been paid on January 30, 1992, thereby, showing that there is double payment and the two checks issued in payment of these two invoices to the accused: Buencamino Mallari-Cruz as payee, shows indubitably, that there was a willful act, with malice aforethought, in having a second payment made, in order that the accused may be able to pocket the money, as he in fact did by encashing the said two checks. For it is likewise evident under the principle RES IPSA LOQUITOR (The thing speaks for itself), namely: that if the money of P54,542.56 were indeed payment for the goods delivered by the supplier-Kelly Lumber and Construction Supply, simple reason and well accepted commercial practice demand for the checks in the first place, to made payable to the suppliers of goods sold in payment thereof. But, why should payment be made to Mayor Buencamino M. Cruz, when he ought not to derive any material benefits, whatsoever, or any pecuniary interest from the transactions entered into by him, for and on behalf of the Municipality, . . . .With his motion for reconsideration having been denied, per the graft court's resolution of 17 July 1998,[5] petitioner is now with us via the instant recourse.
The only excuse given by the accused when he finally testified in his own defense, in very lame. For the excuse he gave, in explaining the anomaly or irregularity is that he was not aware of the double payment and that, he just signed the voucher for payment, as the last officer to sign the voucher, in order to effect payment thereon, to the supplier . . ., and that it was the duty of the Municipal Treasurer to verify the actual deliveries of the goods sold and their payment afterwards. This may be true, if the ensuing checks issued in payment of the goods covered by the voucher for payment, were made payable, indeed, to the real suppliers of the goods, and not made payable to the Mayor, . . ., and who in fact encashed the checks. The only real defense put up here by the accused is that: The supplier-Kelly Lumber and Construction Supply had subsequently reimbursed the Municipality of the amount of P54,542.56 thereby precluding denial of the double payment as shown in Exh. "1" of the accused, . . . . (Underscoring in the original).
Section 3 cited above enumerates in eleven subsections the corrupt practices of any public officers (sic) declared unlawful. Its reference to "any public officer" is without distinction or qualification and it specifies the acts declared unlawful. We agree with the view adopted by the Solicitor General that the last sentence of paragraph [Section 3] (e) is intended to make clear the inclusion of officers and employees of officers (sic) or government corporations which, under the ordinary concept of ""public officers' may not come within the term. It is a strained construction of the provision to read it as applying exclusively to public officers charged with the duty of granting licenses or permits or other concessions. (Emphasis and words in bracket supplied)At any rate, the Local Government Code, particularly Section 444 (b)(3)(iv and v), Chapter 3, Title II, Book III thereof,[7] empowers municipal mayors to issue licenses and permits. Any suggestion that a reference to such power in the information is a condition sine qua non for a successful prosecution for violation of Section 3(e) of RA 3019 has to be rejected. As the Solicitor General aptly observed, matters of law are deemed incorporated or read into the information.
xxx Evidentiary facts need not be alleged in the information because these are matters of defense. Informations need only state the ultimate facts; the reasons therefor could be proved during the trial. x x x (Underscoring supplied)And what petitioner took to be a variance between the allegation in the information, i.e., the excess payment was given to Kelly Lumber, and the acts proven, i.e., the payment in excess was given to petitioner, is more apparent than real. The perceived variance cannot plausibly be taken as invalidating the information and necessarily petitioner's conviction. As may be noted, the information in question states that "x x x accused Buencamino M. Cruz, a public officer being then the Municipal Mayor of Bacoor, Cavite and while in the performance of his official function, acting in evident bad faith, did then and there willfully, unlawfully and criminally pay Kelly Lumber and Construction Supply the amount of Fifty Four Thousand Five Hundred Forty-Two Pesos and 56/100 (P54,542.56), Philippine Currency x x x". What was found during the trial, however, was that, albeit double payment was eventually made, or appeared to have been made, to Kelly Lumber, the covering checks initially were made payable to petitioner. As a matter of fact, Kelly Lumber was even made to appear to have refunded and returned the second or double payment, as demonstrated by a Certification to this effect issued on the 19th day of March 1997 and signed by Bacoor Municipal Treasurer Salome U. Esagunde, which Certification reads in its material part, as follows:
Moreover, petitioner even admitted in his memorandum[9] that "the refund by Kelly Lumber and Construction Supply is the best proof that he did not pay himself for the costs of the supply x x x."C E R T I F I C A T I O N
TO WHOM IT MAY CONCERN:
THIS IS TO CERTIFY that as per records of this office, Kelly Hardware & Construction Supply paid this office the following:
- Refund to double payment on Voucher No. 101-92-06-1222, paid under OR#4251401 dated September 30, 1993..........................................P33,500.00
- Refund to double payment on Voucher No. 101-92-01-195, paid under OR No. 4251402 dated September 30, 1993..........................................21,041.56
Total - (posted at CBV# 101-9309-2273).....P54,542.56
Issued this 19th day of March, 1997 upon request of _____________ for whatsoever legal purpose this may serve.
(Signed) SALOME U. ESAGUNDE Municipal Treasurer
We can, in retrospect, argue that Arias should have probed records, inspected documents, received procedures, and questioned persons. It is doubtful if any auditor for a fairly-sized office could personally do all these things in all vouchers presented for his signature. The Court would be asking for the impossible. All heads of offices have to rely to a reasonable extent on their subordinates and on the good faith of those who prepare bids, purchase supplies, or enter into negotiations. If a department secretary entertains important visitors, the auditor is not ordinarily expected to call the restaurant about the amount of the bill, question each guest whether he was present at the luncheon, inquire whether the correct amount of food was served, and otherwise personally look into the reimbursement voucher's accuracy, propriety, and sufficiency. There has to be some added reason why he should examine each voucher in such detail. Any executive head of even small government agencies or commissions can attest to the volume of papers that must be signed. There are hundreds of documents, letters, memoranda, vouchers, and supporting papers that routinely pass through his hands. x x x.Unlike in Arias, however, there exists in the present case an exceptional circumstance which should have prodded petitioner, if he were out to protect the interest of the municipality he swore to serve, to be curious and go beyond what his subordinates prepared or recommended. In fine, the added reason contemplated in Arias which would have put petitioner on his guard and examine the check/s and vouchers with some degree of circumspection before signing the same was obtaining in this case.
There should be other grounds than the mere signature or approval appearing on a voucher to sustain a conspiracy charge and conviction. (Italics in the original; Underscoring supplied).
Indeed by the mere fact that the accused herein had two (2) checks issued to him in his name, and then, collecting the money in cash without any reason therefore (sic), is evident bad faith, as against bonafides (good faith) for his very act of having these two (2) checks in his name runs against the "gamut" of public accountability . . . .Lest it be overlooked, the offense defined under Section 3 (e) of R.A. 3019 may be committed even if bad faith is not attendant, the elements of the crime being:
(1) that the accused are public officers or private persons charged in conspiracy with them;In Sistoza vs. Desierto, et al.,[15] we held:
(2) that the prohibited act/s were done in the discharge of the public officer's official, administrative or judicial functions;
(3) that they cause undue injury to any party, whether Government or a private person;
(4) that such injury is caused by giving any unwarranted benefits, advantage or preference to such party; and
(5) that the public officers acted with manifest partiality, evident bad faith or gross inexcusable negligence. [14]
xxx Evidently, mere bad faith or partiality and negligence per se are not enough for one to be held liable under the law since the act of bad faith or partiality must in the first place be evident or manifest, respectively, while the negligent deed should both be gross and inexcusable. XxxGiven the above perspective, it is abundantly clear that a violation of Section 3(e) of R.A. 3019 may be committed even through negligence provided that said negligence is both gross and inexcusable.
Damage to the government in that instance [referring to the alleged double payment] is inevitable for the simple reason that money taken from the coffers was used by someone else for about two years and without paying interest and without authority for its use. (N.B. 19 March 1997 is only two months short of two years from filing of this case).Moreover, refund of the amount subject of the prosecution is not one of those enumerated under Article 89 of the Revised Penal Code[16] which would totally extinguish criminal liability. Article 89 of the Revised Penal Code applies in a suppletory character as provided for under Article 10[17] of the same Code.
SECTION 9. Penalties for violations -In the same breath, however, the use of the same term is inappropriate because the penalty of prision mayor is imposable only for felonies punishable under the Revised Penal Code or when a special law specifically provides for such penalty for a given crime. As we have said in People vs. Simon:[18]
(a) Any public officer or private person committing any of the unlawful acts or omission enumerated in Sections 3, 4, 5 and 6 of this Act shall be punished with imprisonment for not less than six years and one month nor more than fifteen years, perpetual disqualification from public office, and confiscation or forfeiture in favor of the Government of any prohibited interest and unexplained wealth manifestly out of proportion to his salary and other lawful income.
With respect to the first example, where the penalties under the special law are different from and are without reference or relation to those under the Revised Penal Code, there can be no suppletory effect of the rules for the application of penalties under said Code or by other relevant statutory provisions based on or applicable only to said rules for felonies under the Code. In this type of special law, the legislative intendment is clear.Republic Act 3019 under which petitioner was prosecuted and convicted is a special law which does not provide for a penalty of "prision mayor" for any of the acts punishable therein. Accordingly, a modification of the decision under review with respect to its penalty component is in order.
The same exclusionary rule would apply to the last given example, Republic Act No. 6539. While it is true that the penalty of 14 years and 8 months to 17 years and 4 months is virtually equivalent to the duration of the medium period of reclusion temporal, such technical term under the Revised Penal Code is not given to that penalty for carnapping. Besides, the other penalties for carnapping attended by the qualifying circumstances stated in the law do not correspond to those in the Code. The rules on penalties in the Code, therefore, cannot suppletorily apply to Republic Act No. 6539 and special laws of the same formulation. (Italics in the original; Underscoring supplied)