G.R. No. 111399




Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 111399 November 14, 1994 ODON PECHO, petitioner, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents. A.M. Navarro Law Office for petitioner. DAVIDE, JR., J.: Is the attempted or frustrated stage of the offense defined in Section 3(e) of R.A. No. 3019, 1 as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, punishable? If it is not, may an accused be, nevertheless, convicted for an offense penalized by the Revised Penal Code which is included in that of the former as charged? These are the core issues in this case. The first was resolved in the affirmative by the Sandiganbayan. The petitioner and the Office of the Solicitor General disagree. The second is an outcrop of the first. In Criminal Case No. 14844 of the Sandiganbayan, the petitioner and one Jose Catre were charged in an information2 with the violation of Section 3(e) of R.A. No. 3019, as amended, allegedly committed as follows: That on or about March 16, 1989 and/or sometime prior thereto at Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused ODON PECHO, a public officer being then the Customs Guard, Miscellaneous Bonded Warehouse Division, Bureau of Customs, South Harbor, Manila, with the indispensable cooperation and assistance of the accused JOSE CATRE, whose position, whether public or private, and address are unknown but representing himself to be a representative of Eversun Commercial Trading of Cotabato City, a corporation, firm or partnership which turned-out to be non-existent, fake or fictitious as it is not registered in the Department of Trade and Industry nor in the Securities and Exchange Commission and with a fake, spurious or fictitious Tax Account No. as it was not issued by the Revenue Information Systems, Inc., Bureau of Internal Revenue, acting in the capacities aforesaid, with the former taking advantage of his official position and both accused, motivated and impelled by personal gain, financial and pecuniary interest, with deliberate intent to cause damage and undue injury to the Government, through manifest partiality and evident bad faith, conspiring, confabulating, conniving, confederating and mutually helping one another, did then and there wilfully, unlawfully and feloniously act, pretend and feign to be agents or representatives of Eversun Commercial Trading in the importation of 5 x 20 foot containers STC agricultural disc blades and irrigation water pumps, and engage, solicit and contract the services of one Constantino Calica of Labatique, a CPA Customs Broker for the release of said shipment and/or preparation of the necessary import entry with the two (2) accused, furnishing, presenting and producing the necessary shipping documents such as packing list, commercial invoice, bill of lading and import entry declaration, which led and prompted said Customs Broker to file BOC Import Entry No. 14081-89 with the computed taxes and duties amounting to P53,164.00 declaring the shipment as five (5) containers STC agricultural disc blades and irrigation water pumps, more particularly described as follows: 5 CONTAINERS STC: 200 pcs. Agricultural Disc Blades 24 inches in diameter 100 pcs. Agricultural Disc Blades 30 inches in diameter 50 sets Centrifugal Water Pump 5 HP 25 sets Centrifugal Water Pump Diesel Engine 10 H.P. 100 sets Centrifugal Water Pump Diesel engine 25 H.P. but contrary to the entry declaration, the subject shipment before its release, upon examination was found and/or discovered to contain 300 units diesel engines Model 4DR50A, to wit, viz.: 1. Contr. No. EKLU-2673966 20' — containing 60 pcs./units 4DR50A diesel engines 2. Contr. No. ITLU-6078177 20' — containing 60 pcs./units 4DR50A diesel engines 3. Contr. No. UFCO-3976925 20' — containing 60 pcs./units 4DR50A diesel engines 4. Contr. No. KLTU-1010988 20' — containing 60 pcs./units 4DR50A diesel engines 5. Contr. No. KXTU-2027369 20' — containing 60 pcs./units 4DR50A diesel engines and the correct taxes and duties is P1,080,485.00, to the damage and prejudice of the government in the difference of said amounts or to be exact in the amount of P1,027,321.00, said offense having been committed in relation to the office of the above-named accused. CONTRARY TO LAW. The investigating prosecutor3 made the following certification in the information: This is to certify that a preliminary investigation has been conducted in this case; that there is a reasonable ground to engender a well-founded belief that a crime has been committed and that the accused are probably guilty thereof. 4 Warrants for the arrest of the accused were issued. Only the petitioner was brought under the Sandiganbayan's jurisdiction when he voluntarily surrendered on 15 March 1991. He posted bail.5 After the petitioner had pleaded not guilty at his arraignment on 20 March 1991,6 trial on the merits as against him ensued. In its decision 7 promulgated on 28 June 1993, the Sandiganbayan (Second Division) found the petitioner guilty as charged and, applying the Indeterminate Sentence Law, sentenced him "to suffer imprisonment for an indeterminate period of Six (6) years and One (1) month as minimum penalty, to Ten (10) years and One (1) day, as maximum penalty, with perpetual disqualification to hold public office; and to pay the Bureau of Customs, by way of civil liability, the sum of P1,027,321.00 and to pay the costs."8 The petitioner's motion for reconsideration based on the following grounds, to wit: (1) Invalidity of the information as a consequence of non-compliance with the mandatory provisions of Sections 3 and 4, Rule 112, 9 Rules of Court, and of Sections 6 and 7, Rules of Procedure of the Office of the Ombudsman (Administrative Order No. 07); (2) Failure of the prosecution to overcome by proof beyond reasonable doubt the presumption of innocence in favor of accused Odon Pecho; (3) Failure of the prosecution to establish the attendance of the concurring essential elements of the crime charged; and (4) There is no such crime as attempted violation of Section 3(e), RA 3019. 10 having been denied in the resolution of the Sandiganbayan of 12 August 1993, 11 he now comes before us with a reiteration of the said grounds. In its Manifestation in Lieu of Comment 12 filed after having obtained six extensions of time to file its Comment, or for a total of one hundred and fifty days, the Office of the Solicitor General submits that there is no merit to the petitioner's claim that the information is invalid for non-compliance with Sections 3 and 4, Rule 112 of the Rules of Court and with Sections 6 and 7 of the Rules of Procedure of the Ombudsman (Administrative Order No. 07), but agrees with the petitioner that the prosecution failed to prove the elements of the crime charged and the consummation thereof, and, hence, he should be acquitted. However, it recommends that the petitioner be charged administratively for the violation of Section 36(b) [28] of P.D. No. 807, otherwise known as the Civil Service Decree of the Philippines. In the challenged resolution, the Sandiganbayan rejected the first ground invoked by the petitioner in his motion for reconsideration because of waiver, having voluntarily entered his plea of not guilty, participated at the trial, and offered his evidence. As to the second and third grounds, it ruled that the decision "is supported with proof beyond reasonable doubt." And as to the fourth ground, it held that the provisions of the Revised Penal Code on attempted or frustrated felonies do not apply to offenses penalized by special laws, like the Anti-Graft and Corrupt Practices Act; hence: violation of Section 3(e) of RA 3019 is always consummated irrespective of whether or not the accused has achieved his purpose. The accused's argument that he did not realize his purpose of depriving the government in the form of customs tax and duties is of no moment. It is enough that the accused committed an act that would cause undue injury to the government to make him liable. 13 We agree with the respondent Sandiganbayan and the Office of the Solicitor General that, indeed, the procedural issue raised is without merit. Firstly, the certification of the investigating Prosecutor in the information is sufficient. His failure to state therein that the accused was informed of the complaint and of the evidence submitted against him and that he was given an opportunity to submit controverting evidence, which the petitioner claims is fatal because it is mandatorily required by Sections 3 and 4, Rule 112 of the Rules of Court, is untenable. When the Prosecutor stated under oath that, inter alia, "a preliminary investigation has been conducted in this case," he gave the solemn assurance that such preliminary investigation conformed with the requirements set forth in the said sections. The certification in question is similarly worded as that involved in Alvizo vs. Sandiganbayan 14 which this Court explicitly declared to be sufficient. This Court also reiterated therein the doctrine laid down in People vs. Marquez 15 that the absence of a certification as to the holding of a preliminary investigation does not invalidate an information because such certification is not an essential part of the information itself. In Marquez, this Court held: It should be observed that section 3 of Rule 110 defines an information as nothing more than "an accusation in writing charging a person with an offense subscribed by the fiscal and filed with the court." Thus, it is obvious that such certification is not an essential part of the information itself and its absence cannot vitiate it as such. True, as already stated, section 14 of Rule 112 enjoins that "no information . . . shall be filed, without first giving the accused a chance to be heard in a preliminary investigation," but, as can be seen, the injunction refers to the non-holding of the preliminary investigation, not the absence of the certification. In other words, what is not allowed is the filing of the information without a preliminary investigation having been previously conducted, and the injunction that there should be a certification is only a consequence of the requirement that a preliminary investigation should first be conducted. If the absence of a certification would not even invalidate the information, then its presence, although deficient because of some missing clauses or phrases required under Section 4, Rule 112 of the Rules of Court, can do nothing worse than the former. The rule is also settled that the right to a preliminary investigation may be waived by the failure to invoke the right prior to or at least at the time of the accused's plea. 16 Where the accused pleaded to the charge, he is deemed to have foregone the right of preliminary investigation and the right to question any irregularity that surrounds it. 17 The right to a preliminary investigation is not a fundamental right and may be waived expressly or by silence. 18 Equally devoid of merit is the alleged non-compliance with Sections 6 and 7, Rule II of the Rules of Procedure of the Office of the Ombudsman. The presumption of regularity in the performance of official duty 19 on the part of the investigating Prosecutor was not rebutted. Moreover, the failure to furnish the respondent with a copy of an adverse resolution pursuant to Section 6 which reads: Sec. 6. Notice to parties. — The parties shall be served with a copy of the resolution as finally approved by the Ombudsman or by the proper Deputy Ombudsman. does not affect the validity of an information thereafter filed even if a copy of the resolution upon which the information is based was not served upon the respondent. The contention that the provision is mandatory in order to allow the respondent to avail of the 15-day period to file a motion for reconsideration or reinvestigation is not persuasive for under Section 7 of the said Rule, such motion may, nevertheless, be filed and acted upon by the Ombudsman if so directed by the court where the information was filed. Finally, just as in the case of lack of or irregularity in the conduct of the preliminary investigation, a party, like the petitioner herein, should have seasonably questioned the procedural error at any time before he entered his plea to the charge. His failure to do so amounted to a waiver or abandonment of what he believed was his right under Sections 6 and 7, Rule II of the Rules of Procedure of the Office of the Ombudsman. We shall now direct our attention to the core issue in this case, viz., whether the attempted or frustrated stage of the crime defined in Section 3(e) of R.A. No. 3019 is punishable. From the facts proved by the prosecution, the plan of the petitioner and his co-conspirators to defraud the government was foiled. The Sandiganbayan stated: However, the felonious plan of the two accused to defraud the government was exposed and foiled through the combined efforts of the employees of the Bureau of Customs. A spot check on the shipment was conducted on March 9, 1989 by the Customs Senior Agent Ruperto Santiago. They discovered that the contents are automotive diesel engines instead of agricultural disc blades and irrigation pumps as declared in the import entry and revenue declaration (Exh. A-6) filed with the Bureau of Customs, more particularly as follows: xxx xxx xxx On March 30, 1989, a random computation was made by Customs Appraiser Mamerto Fernandez based on the information provided by the Legal Division and he found out that a discrepancy exists in the total amount of taxes equivalent to P1,627,321.00 20 (Exh. E). Consequently, a hold order and also a warrant of seizure and detention were issued by the District Collector of Customs covering said goods. 21 The evidence for the prosecution, as summarized in the challenged decision 22 and in the Manifestation of the Office of the Solicitor General, 23 established beyond doubt how the petitioner and his co-accused, Jose Catre, carried out their plan to defraud the Government. The petitioner and Catre are from Surigao del Norte. On 15 March 1989, Catre and the petitioner, then a Customs Guard of the Bureau of Customs assigned at the Miscellaneous Bonded Warehouse Division, South Harbor, Manila, went to the office of Constantino Calica, a certified public accountant and a customs broker, at Magallanes Street, Intramuros, Manila. They introduced themselves to Calica as the duly authorized representatives of Eversun Commercial Trading, and then engaged him, for an amount equal to fifty percent (50%) of the authorized brokerage fee, to prepare and file with the Bureau of Customs the necessary Import Entry and Internal Revenue Declaration covering Eversun's shipment. The petitioner and Catre submitted to Calica the packing list (Exhibit "A-3"), the commercial invoice (Exhibit "A-4"), the bill of lading (Exhibit "A-5"), and the sworn import entry declaration (Exhibit "A-6"). The shipment was declared as agricultural disc blades and irrigation water pumps more particularly described as follows: 200 pcs. Agricultural Disc Blades 24 inches in diameter 100 pcs. Agricultural Disc Blades 30 inches in diameter 50 sets Centrifugal Water Pump Diesel engine 5 HP 25 sets Centrifugal Water Pump Diesel engine 10 HP 100 sets Centrifugal Water Pump Diesel engine 25 HP Based on the foregoing information and the unit HCV in currency per invoice, the customs duties and taxes due were computed at P53,164.00. On 16 March 1989, Calica instructed his son Dennis, also a customs broker, to file the documents with the Manila International Container Port (MICP) and to proceed to K-Line Shipping in Makati, Metro Manila, for the processing of the delivery permits. Dennis first dropped by at K-Line Shipping where he was approached by the petitioner and Catre who introduced themselves as the clients of his father. They invited Dennis to ride with them in petitioner's car in going to the MICP. Dennis agreed. Upon arrival at the MICP, Dennis proceeded to the Entry Processing Division of the Bureau of Customs and filed the import entry and internal revenue declaration (Exhibit "A") and other supporting documents. Dennis handed to the petitioner and Catre a copy of the import entry and internal revenue declaration. They then proceeded to Section 6, the Examiner's Group, of the Bureau of Customs for further processing. Two days after the documents were submitted to the Entry Processing Division, Catre called up Calica and requested Calica to assist him and the petitioner when the cargo will be submitted for actual examination. Calica agreed. On 21 March 1989 Dennis met again with Catre for the processing of the examination request. After filing the request with the arrastre operator, Dennis checked the respective serial numbers of each container. Dennis did not join anymore in the actual examination of the containers. On 27 March 1989, Baltazar Morales, Chief Intelligence Officer of the Bureau of Customs, addressed a formal request (Exhibit "B") to the District Intelligence Officer of the Bureau for a 100% examination of the shipment consigned to Eversun Commercial Trading. On 29 March 1989, Ruperto Santiago, Customs Senior Agent, conducted a spot check on the questioned shipment to verify the contents of the container van. It was discovered that the contents were automotive diesel engines instead of agricultural disc blades and irrigation pumps as declared in the import entry and revenue declaration. The engines are more particularly described as follows: 1. Contr. No. EKLU-2673966 20' — containing 60 pcs./units DR50A diesel engine 2. Contr. No. ITLU-6078177 20' — containing 60 pcs./units 4DR50A diesel engine 3. Contr. No. UFCO-3976925 20' — containing 60 pcs./units 4DR50A diesel engine 4. Contr. No. KLTU-1010988 20' — containing 60 pcs./units 4DR50A diesel engine 5. Contr. No. KXTU-2027369 20' — containing 60 pcs./units 4DR50A diesel engine The computation of the taxes due thereon made on 30 March 1989 by Mamerto Fernandez, Customs Appraiser, showed a discrepancy in the total amount of P1,027,321.00 (Exhibit "E"). Consequently, a hold order and a warrant of seizure and detention were issued by the District Collector of Customs. Per the directive of the Commissioner of Customs dated 20 April 1989, Attys. Cesar Tugday and Crisanto Tamparong of the Internal Inquiry and Prosecution Division conducted an investigation on the circumstances surrounding the interception and seizure of the shipment. Their verification with the Securities and Exchange Commission (SEC) and the Department of Trade and Industry (DTI) disclosed that Eversun Commercial Trading is a non-existent firm and that the tax account number used by Eversun in making the Import Entry Declaration was non-existent. During their investigation, Tugday and Tamparong issued two subpoenas to the petitioner to appear before them. He did not appear to explain his side. As a result, Tugday and Tamparong prepared an Investigation Report (Exhibit "I") containing their findings and recommendations, among which were the filing of criminal charges against the petitioner, Jose Catre, and a certain Pablito Ampal pursuant to Section 3602 of the Tariff and Customs Code of the Philippines and the filing of criminal charges against the petitioner under Section 3610, in relation to Section 3512. Subsequently, after appropriate preliminary investigation, the information was filed with the Sandiganbayan. On the basis of the evidence, the Sandiganbayan concluded that all the elements of Section 3 (e) of R.A. No. 3019, to wit: 1. The accused is a public officer or private person charged in conspiracy with him; 2. Said public officer commits the prohibited acts during the performance of his official duties or in relation to his public position; 3. He causes undue injury to any party, whether the government or private party; 4. Such undue injury is caused by giving unwarranted benefits, advantage or preference to such parties; and 5. The public officer has acted with manifest partiality, evident bad faith or gross inexcusable negligence. 24 are present in this case. More specifically, it said: Accused Odon Pecho acted in bad faith from the very start when he conspired with his co-accused Mr. Jose Catre in misleading the government on the actual contents of the shipments belonging to Eversun Commercial Trading and thereby evading the payment of correct taxes due to the government. "Bad faith" does not simply connote bad judgment or negligence; it imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud. (Spiegel vs. Beacon Participations 8 NE 2nd Series, 895, 1007). It contemplates a statement of mind affirmatively operating with furtive design or some motive of self-interest or ill will for ulterior purposes (Air France vs. Carrascoso, 18 SCRA 155). Evident bad faith connotes a manifest deliberate intent on the part of accused to do wrong or cause damage. As Customs Guard, the accused is supposed to safeguard the interest of the government particularly the Bureau of Customs to which he is employed. Nonetheless, he allowed himself to be used in this illegal scheme to give unwarranted benefits or advantage to the importer at the expense of the government. The accused's participation is positively established by the testimonies of Messrs. Constantino Calica and his son Dennis Calica. These two represent the Calica Brokerage contracted by the two accused Mr. Pecho and Mr. Catre to prepare and file with the Bureau of Customs the required import entry declaration. The two accused went straight to Mr. Calica's office and introduced themselves as the duly authorized representatives of Eversun Commercial Trading which is based at Surigao del Norte. The contract of services entered into by the two accused and Mr. Constantino Calica may be said to be peculiar from the usual contract of this kind. It is limited only to the preparation of the import entry declaration, the computation of taxes due to the Bureau of Customs and filing the same with the latter. It was the two accused who handed Mr. Calica the shipping documents necessary for the preparation of an import entry declaration such as the packing list (Exh. A-3), the commercial invoice (Exh. A-4), bill of lading (Exh. A-3) and the importer's sworn statement. These documents declare the shipment as five (5) containers of STC agricultural disc blades and irrigation water pumps more particularly described as follows: xxx xxx xxx Based on the information given by the two accused, the taxes and duties was computed at P53,164.00. As the customs representative of Calica Brokerage, Dennis Calica is in-charge with the filing and posting of documents with the Bureau of Customs. On March 16, 1989, his father instructed him to file the import entry declaration covering the importations of Eversun Commercial Trading with the Bureau of Customs. He dropped first at the head office of K Line Shipping Company in Makati to process the delivery permits. While he was there, two men approached him and introduced themselves as Mr. Pecho and Mr. Catre, the clients of his father. The two accused invited him to go with them and they boarded Mr. Pecho's car and the three of them proceeded to the Manila International Container Port. The two accused accompanied him when the import entry declaration (Exh. A-6) was filed with the Entry Processing Division, Bureau of Customs. The services of the Calica Brokerage were again solicited by the two accused in the actual examination of the goods. So, on March 21, 1989, Dennis Calica met again with the two accused for the said purpose. There is a deliberate intent on the part of the accused to do wrong or cause damage to the government. This may be inferred from the actuations of two accused. Their concerted actions show that they cooperated with each other towards the accomplishment of a common felonious purpose, in this case, the defraudation of the government through non-payment of the correct amount of taxes and duties to the latter (People vs. Catubig, 195 SCRA 505). Accused Pecho assisted his co-accused Catre in his official capacity as a customs guard in processing the documents required to insure that the goods consigned to Eversun Commercial Trading be released without delay and without arousing suspicion from the government authorities. Accused Pecho's act defeats the very objective of the government to upgrade the system of collection with regard to taxes and duties due to the government. Moreover, this is tantamount to an act of betrayal of the confidence reposed in him when he was employed as Customs Guard of the Bureau of Customs. 25 There is no doubt in our minds that without the early discovery of the fraud through the timely recommendation by the Chief Intelligence Officer for a 100% examination of the shipment and the spot check of the shipment by Customs Senior Agent Ruperto Santiago, the Government would have been defrauded in the sum of P1,027,321.00 corresponding to the deficiency in taxes. Such discovery and the immediate issuance of a hold order and a warrant of seizure and detention by the District Collector of Customs against the said articles effectively prevented the consummation of the offense. The Government incurred no undue injury or damage. At most then, the violation of Section 3(e) of R.A. No. 3019 reached only the attempted stage because the perpetrators had commenced the commission of the offense directly by overt acts but failed to perform all the acts of execution which would have produced the felony as a consequence by reason or some cause other than their own spontaneous desistance, 26 namely, the timely intervention of alert customs officials before the release of the cargoes. Except then as to the third requisite of the offense penalized by Section 3 (e) of R.A. No. 3019, as amended, viz.: "causing undue injury to any party, including the Government," we agree with the findings and conclusion of the Sandiganbayan that the requisites thereof, as laid down in Ponce de Leon vs. Sandiganbayan, 27 are present in this case. Would the absence of the third requisite, which, therefore, makes the petitioner's act only an attempted violation of Section 3(e), subject him to the same penalty as if he had committed the consummated crime? The answer would depend on whether Article 6 28 of the Revised Penal Code is applicable to offenses punished by special laws, like R.A. No. 3019, as amended, more specifically to that covered by Section 3(e) thereof, which is involved in this case. In United States vs. Basa, 29 this Court held that the last paragraph of Article 3 of the Old Penal Code relating to attempts to commit crimes is not applicable to offenses punished "by acts of the Commission," i.e., special laws. In People vs. Ngan Te, 30 this Court also held that an accused cannot be convicted of a frustrated violation of a crime punished by a special law (Section 4 of the Gold Reserve Act of Congress of 30 January 1934). In People vs. Jolliffe, 31 involving a prosecution for the violation of Section 34 of R.A. No. 265, in relation to Section 4 of Central Bank Circular No. 21 which provides: Any person desiring to export gold in any form, including jewelry, whether for refining abroad or otherwise, must obtain a license from the Central Bank. Applicants for export licenses must present satisfactory evidence that the import of the gold into the country of the importer will not be in violation of the rules and regulations of such country. this Court, in rejecting the contention of the defense that the penalty for violations of the circular refer to consummated exportation not to "attempted or frustrated exportation," declared: This section explicitly applies to "any person desiring to export gold" and, hence, it contemplates the situation existing prior to the consummation of the exportation. Indeed, its purpose would be defeated if the penal sanction were deferred until after the article in question had left the Philippines, for jurisdiction over it, and over the guilty party, would be lost thereby. It may thus be said that the application of Article 6 of the Revised Penal Code to offenses penalized by special laws would depend on how the latter defines the offense. This would give life to Article 10 thereof which provides that the Code shall be supplementary to special laws, unless the latter should specifically provide the contrary. In the case of Section 4 of Central Bank Circular No. 21, it is clear from the phrase "desiring to export" that even a mere attempt to export — which is necessarily included in desiring — is punishable. There are two principal reasons why Section 3(e) of R.A. No. 3019, as amended, can be said to penalize only consummated offenses. Firstly, the penalty imposed therefor per Section 9 is "imprisonment for not less than six years and one month nor more than fifteen years, perpetual disqualification from 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." The imposable imprisonment penalty does not have the nomenclature and duration of any specific penalty in the Revised Penal Code. Accordingly, there can be no valid basis for the application of, inter alia, Articles 50 and 51 on the penalty to be imposed on the principal of a frustrated and attempted felony. The penalty of perpetual disqualification is only from office, unlike either the perpetual absolute and perpetual special disqualifications under Articles 30 and 31 of the Revised Penal Code. Secondly, the third requisite of Section 3(e), viz., "causing undue injury to any party, including the government," could only mean actual injury or damage which must be established by evidence. The word causing is the present participle of the word cause. As a verb, the latter means "to be the cause or occasion of; to effect as an agent; to bring about; to bring into existence; to make to induce; to compel." 32 The word undue means "more than necessary; not proper; illegal." 33 And the word injury means "any wrong or damage done to another, either in his person, rights, reputation or property. The invasion of any legally protected interest of another." 34 Taken together, proof of actual injury or damage is required. Thus, in Alejandro vs. People, 35 which involves a prosecution for the violation of Section 3(e) of R.A. No. 3019, as amended, this Court, in acquitting the accused declared: Moreover, one of the elements of the crime described in Sec. 3(e) of the Anti-Graft and Corrupt Practices Act is that there should be undue injury caused to any party. However, in the 30 July 1987 decision of the respondent Sandiganbayan, it is recognized that there was no proof of damage caused to the employees of the hospital since they were in fact paid on 27 October 1982 their salaries for the entire third quarter of 1982. In Fernando vs. Sandiganbayan, 36 this Court, quoting the ruling in Alejandro, also stated: There is no evidence whatsoever to show that the acts of the petitioners were done with evident bad faith or gross negligence. Neither is there proof that there was undue injury caused to any party. Who is the party injured? There is nothing in the records to show injury to any party, least of all the government. The urgent repairs were completed. The Bureau of Customs personnel and the public dealing with them were benefited but nobody was injured. But most of all, there was no evident partiality. No actual injury or damage having been caused to the Government due to the timely 100% examination of the shipment and the subsequent issuance of a hold order and a warrant of seizure and detention, the petitioner must, perforce, be acquitted of the violation of Section 3(e) of R.A. No. 3019. Fortunately, for the State, the offense charged in the information in Criminal Case No. 14844 necessarily includes the complex crime of estafa (under paragraph 2(a), Article 315, Revised Penal Code) through falsification of public documents (under Article 171, Revised Penal Code). Article 315 reads: Art. 315. Swindling (estafa). — Any person who shall defraud another by any of the means mentioned herein below. xxx xxx xxx 2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud: (a) By using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits. The information alleges in no uncertain terms the essential ingredients of estafa under said paragraph 2 (a), viz., (1) false or fraudulent representation of co-accused Jose Catre that he was the duly authorized representative of Eversun Commercial Trading, the alleged importer of agricultural disc blades and irrigation water pumps in the container van when, in truth and in fact, said importer is non-existent or fictitious with an equally spurious Tax Account Number, and that the cargoes imported were not as declared but 300 units of diesel engines, which fraudulent acts were done with the use of falsified documents such as import entry declaration, packing list, commercial invoice and bill of lading; (2) the false pretenses or fraudulent acts were executed prior to the commission of the fraud; and (3) the defraudation of the Government in the amount of P1,027,321.00 in taxes representing the difference between the correct taxes and duties due and that earlier computed on the basis of the false declaration. In other words some of the essential ingredients of the offense charged constitute the essential requisites of estafa through falsification of official documents. If duly proved by the evidence for the prosecution that satisfies the quantum of proof required for conviction, the petitioner can, under the information be convicted of estafa through falsification of official and commercial documents, an offense which is, as stated earlier, included in that which is charged. Section 4, Rule 120 of the Rules of Court provides: Sec. 4. Judgment in case of variance between allegation and proof. — When there is variance between the offense charged in the complaint or information, and that proved or established by the evidence, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved included in that which is charged, or of the offense charged included in that which is proved. Analyzing this provision, this Court stated in Esquerra vs. People: 37 Stated differently, an accused may be convicted of an offense provided it is included in the charge, or of an offense charged which is included in that proved. Still stated differently, an accused can be convicted of an offense only when it is both charged and proved. If it is not charged although proved, or if it is not proved although charged, the accused cannot be convicted thereof. In other words, variance between the allegation and proof cannot justify conviction for either the offense charged or the offense proved unless either is included in the other. Section of Rule 120 states when an offense includes or is included in the other: Sec. 5. When an offense includes or is included in another. — An offense charged necessarily includes that which is proved, when some of the essential elements or ingredients of the former, as this is alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form a part of those constituting the latter. In view of the aforesaid rules, it follows then that: a. When the offense proved is less serious than, and is necessarily included in, the offense charged (as when the offense proved is homicide and the offense charged is murder), in which case the defendant shall be convicted of the offense proved (U.S. vs. Macalintal, 2 Phil. 448; . . .). b. When the offense proved is more serious than and includes the offense charged (as when the offense proved is serious physical injuries and the offense charged is slight physical injuries), in which case the defendant shall be convicted only of the offense charged (U.S. vs. Guzman, 8 Phil. 21 . . .). 38 As earlier adverted to, the evidence established by the prosecution proves beyond reasonable doubt that the crime of estafa was only at its attempted stage and that it was sought to be consummated through the falsification of the following documents: the packing list (Exhibit "A-3") and Invoice (Exhibit "A-4"), which appear to be prepared by the exporter, Kowa Tsusho Co. Ltd. through one Masayuki Higuchi, its general manager; Bill of Lading (Exhibit "A-5") which appears to be issued in Yokohama by the Kisen Kaishe Ltd.; the sworn Import Entry Declaration (Exhibit "A-6") all of which show that the cargoes imported were "agricultural disc blades and irrigation water pumps; as well as the Import Entry and Internal Revenue Declaration signed by customs broker Constantino Calica and prepared on the basis of the foregoing documents. The falsifications consist in making it appear that the importer-consignee indicated is a legitimate importer or an existing importer which had participated in such importation and authorized the accused to request the release of the imported articles although, in truth, it is non-existent and, therefore, had no participation in the importation; and in the untruthful statements that what were imported were agricultural disc blades and irrigation water pumps when in truth they were automotive diesel engines. The information in this case can also be considered as charging two offenses: the violation of Section 3(e) of R.A. No. 3019 and the complex crime of attempted estafa through falsification of official and commercial documents. The accused having failed to object before trial to the duplicitous information, he may be validly convicted of both or either of the offenses charged and proved. 39 The Import Entry Declaration (Exhibit "A-6"), a public and official document, is required by Section 1301 of the Revised Tariff and Customs Code of the Philippines. 40 Under the said section, the parties authorized to make the import entry are (a) the importer, being the holder of the bill of lading, (b) a duly licensed customs broker acting under authority from a holder of the bill of lading, or (c) a person duly empowered to act as agent or attorney in fact for such holder. If the entry is filed by a party other than the importer, the importer shall himself be required to declare under oath and under penalties for falsification or perjury that the declarations and statements contained in the entry are true and correct. Such statements under oath shall constitute prima facie evidence of knowledge and consent of the importer of a violation against applicable provisions of the Code should the importation turn out to be unlawful or irregular. The falsifications then of the aforesaid official and commercial documents were the necessary means for the commission of the attempted estafa. There was no direct proof that the petitioner and his co-conspirator, Jose Catre, were the authors of the falsification. Nevertheless, since it was shown with moral certainty from the testimony of the Calicas that the petitioner and Catre were in possession of the falsified documents and personally delivered them to Dennis Calica and that they showed extraordinary personal interest in securing the release of the cargoes for a fictitious importer, then the petitioner and Catre are presumed to be the authors of the falsified documents. A rule, well-buttressed upon reason, is that in the absence of satisfactory explanation one found in possession of and who used a forged document is the forger and therefore guilty of falsification. 41 It is, however, essential that the use must be so closely connected in time with the forging such that the utterer or user may be proved to have the capacity of forging, or such close connection with the forger that it becomes, when so accomplished, probable proof of complicity in the forgery. 42 In People vs. Sendaydiego, 43 this Court reiterated the rule thus: The rule is that if a person had in his possession a falsified document and he made use of it (uttered it), taking advantage of it and profiting thereby, the presumption is that he is the material author of the falsification. This is especially true if the use or uttering of the forged documents was so closely connected in time with the forgery that the user or possessor may be proven to have the capacity of committing the forgery, or to have close connection with the forgers, and, therefore, had complicity in the forgery. (U.S. vs. Castillo, 6 Phil. 453; People vs. De Lara, 45 Phil. 754; People vs. Domingo, 49 Phil. 28; People vs. Astudillo, 60 Phil. 338; People vs. Manansala, 105 Phil. 1253). In the absence of a satisfactory explanation, one who is found in possession of a forged document and who used or uttered it is presumed to be the forger (Alarcon vs. Court of Appeals, L-21846, March 31, 1967, 19 SCRA 688; People vs. Caragao, L-28258, December 27, 1969, 30 SCRA 993). No explanation at all having been given by the petitioner as to why he and his co-accused were in possession of and used the falsified official and commercial documents, they are deemed to be the forgers thereof. Accordingly, the petitioner is liable for and can be validly convicted of the complex crime of attempted estafa through falsification of official and commercial documents under paragraph 2(a) of Article 315 and Article 171 of the Revised Penal Code. Pursuant to Article 48, the penalty for the more serious crime shall be applied in its maximum period. If the crime of estafa had been consummated, the Government would have been defrauded in the amount of P1,027,321.00. Hence, the applicable penalty under Article 315 of the Revised Penal Code would have been prision correccional in its maximum period to prision mayor in its minimum period, with an additional one (1) year for every P10,000.00 in excess of the first P22,000.00; provided, that the total penalty should not exceed twenty years. Since what was established was only attempted estafa, then the applicable penalty would be that which is two degrees lower than that prescribed by law for the consummated felony pursuant to Article 51, in relation to Article 61(5), of the Revised Penal Code, viz., arresto mayor in its medium period to arresto mayor in its maximum period. On the other hand, the penalty for falsification under Article 171 is prision mayor and a fine not exceeding P5,000.00. Obviously then, this is the more serious crime which shall be imposed upon the petitioner pursuant to Article 48. Since he is entitled to the benefits of the Indeterminate Sentence Law, 44 he can be sentenced to an indeterminate penalty ranging from two (2) years, four (4) months, and one (1) day of prision correccional medium as minimum to ten (10) years and one (1) day of prision mayor maximum as maximum and a fine of P2,000.00. The maximum of the duration is in conformity with Article 48 which mandates that the penalty for the more serious crime shall be applied in its maximum period. The foregoing disquisitions clearly suggest that those in charge of investigating criminal complaints against public officials and employees and of filing the corresponding informations in court must carefully determine under what law the offenders should be prosecuted. They should note that the offenses enumerated in Section 3 of the Anti-Graft and Corrupt Practices Act (R.A. No. 3019, as amended) are but in addition to acts or omissions of public officers already penalized by existing law. Thus, to attain the very purpose of said law and further enhance the constitutional mandate that a public office is a public trust and all public officers and employees "must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency," 45 prosecutors should not limit their action to the additional offenses. To be more logical, they should initially consider if the questioned acts are already penalized by the Revised Penal Code and should the rule on double jeopardy be inapplicable, to exhaust all the available remedies of the State against the offender. It is a cardinal rule that the protection against double jeopardy may be invoked only for the same offense. 46 WHEREFORE, the instant petition is DENIED; however, the judgment of the Sandiganbayan in Criminal Case No. 14844 is modified, and, as modified, the petitioner is hereby declared guilty beyond reasonable doubt of the complex crime of attempted estafa through falsification of official and commercial documents and, applying the Indeterminate Sentence Law, is hereby sentenced to suffer an imprisonment penalty ranging from TWO (2) YEARS, FOUR (4) MONTHS, and ONE (1) DAY of prision correccional medium as minimum to TEN (10) YEARS and ONE (1) DAY of prision mayor maximum as maximum, with the accessories thereof and to pay a fine of Two Thousand Pesos (P2,000.00). Costs against the petitioner. SO ORDERED. Narvasa, C.J., Padilla, Bidin, Regalado, Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan, Mendoza, JJ., concur. Feliciano, JJ., is on leave. #Footnotes 1 It reads: Sec. 3. Corrupt practices by public officers. — In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practice 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 of government corporations charged with the grant of licenses or permits or other concessions. 2 Original Records (OR), 1-4. Filed with the Sandiganbayan on 2 May 1990. 3 Jose J. Parentela, Jr., Special Prosecution Officer II, Office of the Special Prosecutor. 4 OR, 4. 5 OR, 25-32. 6 Id., 43-44. 7 Id., 184-205; Annex "A" of Petition; Rollo, 22-43. Per Associate Justice Augusto M. Amores, concurred in by Associate Justices Romeo M. Escareal (Chairman) and Narciso T. Atienza. 8 Id., 204-205; Id., 42-43. 9 Concerning the procedure in preliminary investigation (Section 3) and the duty of the investigating fiscal (Section 4). 10 OR, 216-217. 11 Annex "B" of Petition; Rollo 44-46. 12 Id., 73-95. 13 Rollo, 46. 14 220 SCRA 55 [1993]. 15 27 SCRA 808 [1969]. See also People vs. Pacala, 58 SCRA 370 [1974]; Estrella vs. Ruiz, 58 SCRA 779 [1974]; and People vs. Arbois, 138 SCRA 24 [1985]. 16 People vs. Gomez, 117 SCRA 73 [1982]. 17 Zacarias vs. Cruz, 30 SCRA 728 [1969]; People vs. Baluran, 32 SCRA 71 [1970]; People vs. Umbrero, 196 SCRA 821 [1991]. 18 People vs. Mabuyo, 63 SCRA 532 [1975]; People vs. Lazo, 198 SCRA 274 [1991]. 19 Section 3(m), Rule 131, Rules of Court. 20 Should be P1,027,321.00 (see Exhibit "E"). 21 Rollo, 40. 22 Id., 26-34. 23 Id., 73-79. 24 Ponce de Leon vs. Sandiganbayan, 186 SCRA 745 [1990]. 25 Rollo, 36-39. 26 Last paragraph, Article 6, Revised Penal Code. 27 Supra note 24. 28 It provides: Art. 6. Consummated, frustrated, and attempted felonies. — Consummated felonies, as well as those which are frustrated and attempted, are punishable. A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator. There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. However, Article 7 specifically provides that light felonies are punishable only when they have been consummated with the exception of those committed against persons or property. 29 8 Phil. 89 [1907]. 30 62 Phil. 588 [1935]. 31 105 Phil. 677 [1959]. Reiterated in People vs. Lim Ho, 106 Phil. 887 [1960]. 32 Black's Law Dictionary, Fifth ed., 200. 33 Id., 1370. 34 Id., 706. 35 170 SCRA 400, 407 [1989]. 36 212 SCRA 680, 692 [1992]. 37 108 Phil. 1078, 1084-85 [1960]. 38 FLORENZ D. REGALADO, Remedial Law Compendium, Vol. Two, Sixth Revised Ed., [1989] 215. 39 Section 3, Rule 120, Rules of Court. See also Section 8, Rule 117. 40 P.D. No. 1464, as amended by E.O. No. 688. 41 Alarcon vs. Court of Appeals, 125 Phil. 1110 [1967]; 19 SCRA 688 [1967], citing People vs. de Lara, 45 Phil. 754 [1924]; People vs. Cu Unjieng, 61 Phil. 906 [1935]; People vs. Loteyro, 50 O.G. No. 2, 632; People vs. Dala, 50 O.G. No. 6, 2675; People vs. Manansala, L-13142, 30 January 1959. 42 People vs. de Lara, supra at note 41; U.S. vs. Castillo, 6 Phil. 453 [1906], citing Wharton's Criminal Law, vol. 1, par. 726. 43 81 SCRA 120, 141 [1978]. 44 Act No. 4103, as amended. 45 Section 1, Article XI. 46 People vs. Tiozon, 198 SCRA 368 [1991]. 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