G.R. No. 153483




SECOND DIVISION G.R. No. 153483 February 14, 2003 FLORDELIZA F. QUERIJERO, petitioner, vs. THE PEOPLE OF THE PHILIPPINES and the SANDIGANBAYAN, respondents. D E C I S I O N MENDOZA, J.: This is a petition for review of the decision,1 dated February 5, 2001, of the Sandiganbayan, finding petitioner Flordeliza F. Querijero guilty of malversation of public funds and sentencing her to suffer a penalty of ten (10) years and one (1) day of prision mayor, as minimum, to eighteen (18) years, eight (8) months, and one (1) day of reclusion temporal, as maximum; to indemnify the Republic of the Philippines in the amount of ₱165,722.78; to pay a fine in the same amount and the costs of the suit; and to suffer perpetual special disqualification to hold public office. Petitioner likewise seeks the reversal of the resolution,2 dated April 25, 2002, of the Sandiganbayan, denying her motion for reconsideration. The information against petitioner Flordeliza F. Querijero alleged ¾ That on or about July 29, 1986, or for some time prior thereto, in Lucena City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, an accountable public officer being a Cashier of Integrated Provincial Health Office, Lucena City and as such accountable for public funds collected and received by her by reason of her office, did then and there wilfully, unlawfully, and feloniously malverse, convert, and misappropriate for her personal use and benefit the amount of One Hundred Sixty Five Thousand Seven Hundred Twenty Two Pesos and 78/100 (₱165,722.78), Philippine Currency, to the damage and prejudice of the government, particularly Lucena City, in the aforementioned amount. CONTRARY TO LAW.3 Upon arraignment, petitioner pleaded not guilty to the charge, whereupon she was tried. The prosecution’s lone witness was Patricio C. Haway, Assistant Provincial Auditor of Quezon Province. Haway testified that he was head of a team of COA auditors, which included Auditors Susana P. Salibio and Dalmacio Aspi. The team conducted an examination of the cash and accounts of petitioner from April 7, 1986 to July 9, 1986. On July 29, 1986, the team went to the office of petitioner, who was then the Cashier of the Integrated Provincial Health Office in Lucena City, but the latter was absent that day. The auditors were later informed that petitioner had not reported for work since July 9, 1986. For this reason, they sealed the safe of petitioner, in the presence of administrative officer Teodoro Melichala and a certain Ofelia Villapando. They also asked petitioner to attend the opening of her safe on August 5, 1986. Two more letters,4 dated August 11, 1986, addressed to petitioner, were sent to her at her Lucena and Parañaque residences, informing her that the opening of her safe had been reset to August 21, 1986 and asking her to give the audit team the combination of the safe. As petitioner failed to comply with the request, the auditors decided to open petitioner’s safe without her, doing so in the presence of witnesses, among whom were Ofelia Villapando and Luisito Q. Rivamonte. They prepared an inventory5 of the contents of the safe and a Schedule of Cash.6 Auditor Dalmacio G. Aspi prepared the Statement of Cash Advances and Disbursements7 and the Statement of Deposits and Disbursements by Checks8 for the period April 7, 1986 to July 9, 1986, while Auditor Susana P. Salibio prepared the List of Unrecorded Collections.9 Based on the audit conducted, Patricio C. Haway prepared a Report of Cash Examination,10 showing a shortage of ₱165,722.78. The shortage consisted of undeposited/unremitted cash collections amounting to ₱102,106.89, unaccounted/unrecorded GSIS/SSS checks in the amount of ₱30,748.85, and unliquidated cash advances amounting to ₱32,867.04. Haway claimed that they required petitioner to restitute the amount of shortage and to submit a written explanation for the shortage, but she never did.11 The defense presented five witnesses, including petitioner Flordeliza F. Querijero. Petitioner claimed she had been on sick leave for sometime before the audit team first went to her office on July 29, 1986. She complained that she had not been given an opportunity to go over the Report of Cash Examination of the audit team and that the amounts of ₱100,000.00 and ₱43,899.33 in the List of Unrecorded Collections12 were checks representing provincial aid which had already been deposited and recorded, as shown in the Statement of Deposits and Disbursement by Checks No. 8-70-300 Accounts13 of Auditor Dalmacio G. Aspi. As for the remaining amount, representing GSIS and SSS checks, petitioner pointed to Acting Collection Officer Ofelia Villapando as the person in charge of such accounts. She denied having unliquidated cash advance totaling ₱32,867.04. She claimed that the said amount included personal services amounting to ₱21,862.44, which was intended for the travel allowances of rural health workers, and it was in the process of payroll and check when she took her sick leave. She likewise denied having incurred unliquidated market and miscellaneous expenses in the amount of ₱7,004.60 because, she said, it had already been paid but was not reimbursed.14 Teresita L. Palentinos, who was Record and Filing Clerk assigned at the Cashier’s Office, testified that her work consisted in recording and preparing vouchers, checks and payrolls, releasing checks, and helping the cashier in the release of pay envelopes. According to her, there were two (2) vaults in their office, the big one, which was used by petitioner, and the small one, which was used by Ofelia Villapando. She was present during the opening of the safe of petitioner on August 21, 1986. She testified that the safe of Ofelia Villapando was never opened by the audit team. She further testified that Ofelia Villapando handled the cash and accounts and that the latter was also in charge of making deposits.15 Rosalinda Lusterio, collecting officer of the Quezon Integrated Provincial Health Office, testified that there were several collectors in their office. She was in charge of summarizing the official receipt duplicates, while Ofelia Villapando collected the GSIS and SSS payments in representation of their office. According to her, petitioner had nothing to do with the GSIS and SSS checks, and that the latter was no longer working in the office on July 8, 1986.1awphi1.nét She likewise testified that Ofelia Villapando, who was in charge of the collection of Provincial Aid, deposited the same in the bank. Petitioner, as cashier, was the one who gave the salaries to the employees and entered the transactions in the cash book. Petitioner also conducted the cash count and afterwards placed the money in the vault, where the same remained until they were used for payments based on the vouchers. Petitioner also prepared the remittance advice when the collections were deposited in the bank, and these were recorded in the cash book.16 Evelyn A. Cabana testified that she was detailed to the Cashier’s Office from 1985 to 1990 as Clerk I. Her duties were to process Medicare claims and to record the same. She said that sometimes Ofelia Villapando assigned her to issue receipts for the Medicare income. However, she said it was Ofelia Villapando who regularly issued the receipts for the collection of Medicare claims and deposited the corresponding payments to the bank.17 1a\^/phi1.net Luisito Q. Rivamonte, who was Administrative Officer III at the time of his testimony, stated that petitioner last reported for work on July 8, 1986. On July 10, 1986, he was designated as Acting Cashier.18 Based on the foregoing evidence of the parties, the Sandiganbayan rendered its decision on February 5, 2001, the dispositive portion of which reads: WHEREFORE, the quantum of evidence sufficient to prove the guilt of the accused beyond reasonable doubt having been established, the Court FINDS Flordeliza Querijero y Faller "GUILTY" beyond reasonable doubt of the crime of Malversation of Public Funds penalized under Article 217 of the Revised Penal Code. Applying the Indeterminate Sentence Law, there being no mitigating nor aggravating circumstance, she is hereby sentenced to suffer the indeterminate penalty of TEN (10) years, and ONE (1) day of Prision Mayor as Minimum to EIGHTEEN (18) years, EIGHT (8) months and ONE (1) day of Reclusion Temporal as Maximum. She is likewise ordered to indemnify the Republic of the Philippines the amount of One Hundred Sixty Five Thousand Seven Hundred Twenty Two Pesos and Seventy Eight Centavos (₱165,722.78); to pay a fine in the same amount, which is the amount of money malversed and the costs of the suit, and, finally, to suffer perpetual special disqualification to hold public office.1awphi1.nét SO ORDERED. Quezon City, Philippines, September 14, 2000.19 Petitioner filed a motion for reconsideration, but her motion was denied. Hence this appeal. Petitioner raises the following issues: First – WHETHER OR NOT, IN LIGHT OF THE EVIDENCE ON RECORD, THE AUDIT WAS REGULARLY CONDUCTED AND THE ALLEGED FUND SHORTAGE OF PETITIONER WAS ACCURATELY ESTABLISHED AS BASIS FOR THE PRESUMPTION RELIED UPON FOR HER CONVICTION OF MALVERSATION; Second – WHETHER OR NOT, GIVEN THE EVIDENCE ON THE MATTER, ACTUAL RECEIPT BY PETITIONER OF THE DEMAND REQUIRED FOR THE PRESUMPTION TO ARISE HAD BEEN ESTABLISHED BY COMPETENT EVIDENCE; and Third – WHETHER OR NOT THE TOTALITY OF THE EVIDENCE AGAINST PETITIONER IS SUFFICIENT TO ESTABLISH PETITIONER’S GUILT OF THE OFFENSE CHARGED BEYOND REASONABLE DOUBT.20 After due consideration of the evidence in this case, we find the appeal meritorious. Conviction for malversation of public funds or property under Art. 21721 of the Revised Penal Code requires proof that (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; and (d) 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.22 Petitioner was, at the time of the alleged commission of the crime, the cashier of the Integrated Provincial Health Office in Lucena City. She had been in the government service for 40 years, 27 years of which as cashier. She was found guilty pursuant to Art. 217 of the Revised Penal Code, which provides that "The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal uses." This presumption is negated when the accused is able to present sufficient evidence that can nullify any likelihood that he had put the funds or property to personal use.23 Petitioner alleges that the presumption provided under Art. 217 of the Revised Penal Code cannot arise in this case because the audit conducted was "irregular, incomplete, and inaccurate," and, consequently, the alleged shortage was not established. Indeed, the records show that aside from petitioner, there were other accountable officers in the Cashier’s Office, among whom were Ofelia Villapando, who collected GSIS and SSS payments, Provincial Aid, and Medicare Claims and deposited the corresponding payments in the bank; Rosalinda Lusterio, who had been collecting officer since 1975; and Luisito Rivamonte, who had been designated Acting Cashier on July 10, 1986. However, only the cash and accounts of petitioner were examined by the COA auditors. Such incomplete audit, which resulted in an alleged shortage that was attributed solely to petitioner’s accountability, is susceptible to errors and inaccuracies. The prima facie presumption under Art. 217 of the Revised Penal Code arises only if there is no issue as to the accuracy, correctness, and regularity of the audit findings and if the fact that funds are missing is indubitably established.24 An accountable officer under Art. 217 of the Revised Penal Code is a public officer who, by reason of his office, is accountable for public funds or property. Sec. 101(1) of the Government Auditing Code of the Philippines (P.D. No. 1445) defines accountable officer to be every officer of any government agency whose duties permit or require the possession or custody of government funds or property and who shall be accountable therefor and for the safekeeping thereof in conformity with law. In the determination of who is an accountable officer, it is the nature of the duties which he performs - the fact that, as part of his duties, he received public money for which he was bound to account, and not the nomenclature or the relative importance the position held - which is the controlling factor.25 It is noteworthy that the COA job order directed a surprise examination of the cash and accounts of the accountable officer/s of the Integrated Provincial Health Office. Petitioner was not mentioned therein as the only accountable officer to be audited, yet she was the only one whose cash and accounts were audited. The audit team should have been more efficient, accurate, and thorough in its job by making sure that all of the accountable officers in that office are included in the audit to avoid irregularity and injustice. Thus, if there are several accountable officers in the same place and they are so near each other as to allow the possibility of one borrowing from another, a simultaneous cash count of all the accountable officers in the vicinity should be conducted in order to assure accuracy and at the same time prevent a cover-up of possible shortage in their accounts.26 This is in accordance with the National Accounting and Auditing Manual which provides: SEC. 603. General instructions for conducting cash examinations. — . . . (c) Sequence of procedural steps. — In order not to unduly paralyze the activities of the cashier’s office and for other good reasons, the count of cash and cash items should be done first. This will be followed by the determination of the officer’s accountability according to his cashbook, verification of accountable forms, reconciliation of officer’s cashbook with accounting records and other procedures. (d) Simultaneous cash count. — All types of funds held by an officer should be examined at one time. Likewise, simultaneous cash examination should be made of all accountable officers located in one place. The auditor should employ as many men as needed to effect a simultaneous cash count. If this is not possible, he should see to it that all cash to be counted are adequately controlled. (emphasis added) (e) Inspection of cash receptacles. — The auditor should not only demand of the accountable officer to produce all the funds for which he is accountable, but should also invariably inspect the safe, desk drawers, and other receptacles where the officer usually keeps his cash. The purpose is to assure the auditor that all cash, official or otherwise, is presented to him. Petitioner was the only one whose cash and accounts were audited despite the fact that there were at least three other accountable officers in the office. Another irregularity in the audit conducted was that the auditors did not open the other vault which was also located in the same office. No explanation was given by the audit team as to why the smaller vault was not opened. The audit team should have inspected the total contents of the safes and other cash receptacles of each accountable officer or employee to establish absolute certainty that no other cash, checks, warrants, or valid cash items had been left out of the count and inventory.27 Thus, in Dumagat v. Sandiganbayan,28 this Court has held that the audit examination cannot be made the basis for holding petitioner therein liable for malversation because it failed to establish that funds were indeed missing since funds kept in other vaults were not included in the examination. That the audit made was incomplete, irregular, and inaccurate is made more evident when the audit report included in the shortage allegedly incurred by petitioner the amount of ₱30,748.85 representing unaccounted/unrecorded GSIS/SSS checks. As heretofore mentioned, the records show that it was Ofelia Villapando, and not petitioner, who was in charge of this account. Besides, petitioner’s last day in office was on July 8, 1986,29 but in the List of Unrecorded Collections, the dates stated in the official receipt of the GSIS and SSS checks were July 8, 1986 and July 9, 1986. Had the audit team been more thorough and complete in its examination by including all the accountable officers and inspecting all the safes and cash receptacles in their possession, the report would have been more credible and accurate. As stated in Tinga v. People:30 1awphi1.nét At this juncture, it may not be amiss to state that considering the gravity of the offense of Malversation of Public Funds, just as government treasurers are held to strict accountability as regards funds entrusted to them in a fiduciary capacity, so also should examining COA auditors act with greater care and caution in the audit of the accounts of such accountable officers to avoid the perpetration of any injustice. Accounts should be examined carefully and thoroughly "to the last detail," "with absolute certainty" in strict compliance with the Manual of Instructions.1a\^/phi1.net In this case, the shortage of funds which was attributed to petitioner was not indubitably established considering that the audit conducted was incomplete, irregular, and inaccurate and did not follow standard auditing procedures by excluding from the examination the other accountable officers in the office and failing to open the other safe used in the office. Hence, the presumption under Art. 217 of the Revised Penal Code, which was made the basis of petitioner’s conviction by the Sandiganbayan, is not applicable. In view of the foregoing, we find that the guilt of petitioner has not been proved beyond reasonable doubt and the evidence of the prosecution does not pass the test of moral certainty sufficient to support a judgment of conviction. WHEREFORE, the decision of the Sandiganbayan dated February 5, 2001 and its resolution dated April 25, 2002, are REVERSED and SET ASIDE and petitioner Flordeliza F. Querijero is ACQUITTED of the crime of malversation of public funds. SO ORDERED. Bellosillo, (Chairman), Quisumbing, Austria-Martinez and Callejo, Sr., JJ., concur. Footnotes 1 Per Justice Anacleto D. Badoy, Jr. and concurred in by Justices Minita V. Chico-Nazario and Ma. Cristina G. Cortez-Estrada. 2 Per Justice Minita V. Chico-Nazario and concurred in by Justices Ma. Cristina G. Cortez-Estrada, Narciso S. Nario, and Francisco H. Villaruz, Jr. Justice Anacleto D. Badoy, Jr., the ponente of the original decision convicting petitioner, voted to reconsider the decision and to acquit petitioner. 3 Rollo, p. 121. 4 Exhs. H and I. 5 Exh. J. 6 Exh. K. 7 Exh. N. 8 Exh. O. 9 Exh. L. 10 Exh. B-1. 11 TSN (Patricio C. Haway), pp. 4-33, Nov. 5, 1992. 12 Exh. L. 13 Exh. O. 14 TSN (Flordeliza F. Querijero), pp. 5-15, Feb. 7, 1994; TSN (Flordeliza F. Querijero), pp. 3-23, Feb. 8, 1994. 15 TSN (Teresita L. Palentinos), pp. 5-11, 21, June 2, 1993. 16 TSN (Rosalinda Lusterio), pp. 22- 31, June 2, 1993. 17 TSN (Evelyn A. Cabana), pp. 5-7, Aug. 23, 1993. 18 TSN (Luisito Q. Rivamonte), pp. 8-10, Aug. 23, 1993. 19 Decision, p. 14; Rollo, p. 19. 20 Petition, pp. 9-10; Rollo, pp. 67-68. 21 This provision reads: ART. 217. Malversation of public funds or property ¾ Presumption of malversation. ¾ Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or negligence, shall permit any other person to take such public funds or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property, shall suffer: . . . . 4. The penalty of reclusion temporal in its medium and maximum periods, if the amount involved is more than 12,000 pesos but is less than 22,000 pesos. If the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua. In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine equal to the amount of the funds malversed or equal to the value of the property embezzled. The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal uses. 22 Madarang v. Sandiganbayan, 355 SCRA 525 (2001); Rueda, Jr. v. Sandiganbayan, 346 SCRA 341 (2000); Diego v. Sandiganbayan, 339 SCRA 592 (2000); Estrella v. Sandiganbayan, 334 SCRA 46 (2000); Enriquez v. People, 331 SCRA 538 (2000); People v. Pepito, 267 SCRA 358 (1997). 23 Madarang v. Sandiganbayan, supra; Diaz v. Sandiganbayan, 302 SCRA 118 (1999). 24 Enriquez v. People, supra. 25 Rueda, Jr. v. Sandiganbayan, supra; Unites States v. Velazquez, 32 Phil. 157 (1915). 26 2 M. Magno and J. Iriarte, Government Auditor’s Handbook 393 (1968). 27 Revised Manual of Instructions to Treasurers of Provinces, Cities and Municipalities (1954), sec. 560 (d). 28 211 SCRA 171 (1992). 29 See Exh. 4 which is a certification signed by Administrative Officer Luisito Q. Rivamonte that Mrs. Flordeliza F. Querijero (petitioner), who has been working at the Provincial Health Office since December 1, 1946 was considered separated from service as of July 8, 1986. 30 160 SCRA 483, 491 (1988). The Lawphil Project - Arellano Law Foundation