G.R. No. 134493

Republic of the Philippines
SUPREME COURT

THIRD DIVISION

G.R. No. 134493 August 16, 2005

BUENCAMINO CRUZ, Petitioners,
vs.
THE HONORABLE SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, Respondents.

D E C I S I O N

GARCIA, J.:

Thru this petition for review on certiorari under Rule 45 of the Rules of Court, petitioner Buencamino Cruz seeks to set aside the Decision dated 30 January 19981 of the Sandiganbayan in its Criminal Case No. 22830, finding him guilty of violation of Section 3(e) of Republic Act (R.A.) No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, and its Resolution dated 14 July 1998,2 denying petitioner’s motion for reconsideration.

The factual antecedents are not at all disputed:

Following the May 1992 local elections and his proclamation as mayor-elect of the Municipality of Bacoor, Cavite, Victor Miranda sought an audit investigation of the municipality’s 1991-1992 financial transactions. Petitioner Buencamino Cruz served as municipal mayor of the town in 1991 until his term ended in the middle of 1992.

Acting on the request, the Commission on Audit (COA) issued COA Order No. 19-1700 constituting a Special Audit Team. In the course of the investigation, the Special Audit Team discovered that certain anomalous and irregular transactions transpired during the covered period, the most serious being the purchase of construction materials evidenced by Sales Invoices No. 131145 and 131137 in the aggregate amount of ₱54,542.56, for which payment out of municipal funds was effected twice. The double payments were made in favor of Kelly Lumber and Construction Supply (Kelly Lumber, for short) and were accomplished through the issuance of two (2) disbursement vouchers (DVs), i.e., DV No. 101-92-06-1222 and DV No. 101-92-01-195. Petitioner signed the vouchers and encashed the two (2) corresponding PNB checks, both of which were payable to his order.

The findings of the Audit Team were embodied in a 336-page SAO Report No. 93-28, on the basis of which petitioner was charged with violation of Section 3(e) of R.A. 3019. The provision reads:

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:

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.

The Information3 against petitioner, filed before the Sandiganbayan and thereat docketed as Criminal Case No. 22830, alleged:

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 (₱54,542.56), 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.

CONTRARY TO LAW.

Upon arraignment, petitioner entered a plea of "Not Guilty". In time, trial ensued.

In a decision4 dated 30 January 1998, the respondent court found petitioner guilty beyond reasonable doubt of violation of Section 3(e) of R.A. 3019 and sentenced him "to serve imprisonment of Seven (7) years, and One (1), month as minimum, to Ten (10) years of prision mayor as maximum, with consequent perpetual disqualification from holding public office, as provided by law."

The anti-graft court predicated its judgment of conviction on the strength of the following main premises:

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, . . . .

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).

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.

Petitioner acknowledges signing the DVs which paved the way for the double payment situation. He also admits encashing the checks corresponding to the DVs in question. He nonetheless urges the setting aside of the assailed decision, anchoring his virtual plea for acquittal on four (4) basic issues, to wit: (1) the fatally flawed Information filed against him; (2) the applicability in his favor of what he tagged as the Arias Doctrine; (3) the absence of bad faith on his part; and (4) the refund of the amount representing overpayment.

We have carefully reviewed the records of this case and found nothing therein to warrant a reversal of the challenged decision of the respondent court.

Petitioner maintains, anent the first issue, that the Information filed against him was fatally defective in that it did not allege that he is an officer "charged with the grant of licenses or permits or other concessions."

Petitioner’s contention is flawed by the very premises holding it together. For, it presupposes that Section 3(e) of R.A. 3019 covers only public officers vested with the power of granting licenses, permits or similar privileges. Petitioner has obviously lost sight, if not altogether unaware, of our ruling in Mejorada vs. Sandiganbayan,6 where we held that a prosecution for violation of Section 3(e) of the Anti-Graft Law will lie regardless of whether or not the accused public officer is "charged with the grant of licenses or permits or other concessions". Following is an excerpt of what we said in Mejorada:

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.

Still, with respect to the first issue, petitioner submits that a conviction could arise only for an inculpatory act alleged in the information and duly established in the trial, arguing in this regards that the information alleged that Kelly Lumber was paid twice for the same materials but what was found during the trial was that the said payment was given to petitioner. Pressing the point, petitioner states in fine that a variance obtains between what was alleged in the Information filed in this case and what was proven during trial.

We are not persuaded.

As held in Socrates vs. Sandiganbayan and People of the Philippines8 :

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 (₱54,542.56), 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:

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:

1. Refund to double payment on Voucher No. 101-92-06-1222, paid under OR#4251401 dated September 30, 1993…………………………………………… ₱33,500.00

2. 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)……...₱54,542.56

Issued this 19^th day of March, 1997 upon request of _____________ for whatsoever legal purpose this may serve.

(Signed)

SALOME U. ESAGUNDE

Municipal Treasurer

Moreover, petitioner even admitted in his memorandum9 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."

It bears stressing that an information needs only allege the acts or omissions complained of as constituting the offense10 , in this case, the fact that petitioner made payment to Kelly Lumber twice, without need of going into specifics of how such payment was made. The accompanying details of the process of payment can be established during trial through evidentiary offer.

Invoking the lessons taught in Arias vs. Sandiganbayan11 , petitioner next argues that he cannot be held guilty of violation of Section 3(e) of RA 3019 for, following the doctrine established in that case, he had every right to rely, to a reasonable extent, on the bona fides of his subordinates, referring to the municipal treasurer and accountant, who prepared the DVs and the checks in question.

Petitioner’s reliance on Arias is very much misplaced. As may be recalled, this Court, in acquitting the accused in Arias, made the following pronouncements:

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.

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).

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.

We refer to the unusual fact that the checks issued as payment for construction materials purchased by the municipality were not made payable to the supplier, Kelly Lumber, but to petitioner himself even as the disbursement vouchers attached thereto were in the name of Kelly Lumber. The discrepancy between the names indicated in the checks, on one hand, and those in the disbursement vouchers, on the other, should have alerted petitioner - if he were conscientious of his duties as he purports to be - that something was definitely amiss. The fact that the checks for the municipality’s purchases were made payable upon his order should, without more, have prompted petitioner to examine the same further together with the supporting documents attached to them, and not rely heavily on the recommendations of his subordinates.

It need no stretching of the mind to understand that the person or entity in whose favor a voucher is processed should also be the payee appearing in the checks issued to satisfy the same. Yet, for still unexplained reasons, petitioner chose to deviate from what to us is an ordinary accounting procedure, doubtless for a consideration less than honest.

Apropos the third issue, it is petitioner’s submission that, while he might have been negligent in the performance of his duties, the prosecution had not, at its end, established his being in bad faith.

Whether or not petitioner acted in good or bad faith in effecting what, at bottom, is an unauthorized double payment, addresses a question of credibility. As a general proposition, the determination of credibility is the domain of the trial court, not this Court.12 And it cannot be overemphasized that the respondent court has declared petitioner to have acted with "malice afterthought", a disposition which, in the language of that court, "is evident from checks originally issued in payment for goods paid twice made in favor of the accused himself." 13

Added the respondent court:

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;

(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

In Sistoza vs. Desierto, et al.,15 we held:

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. Xxx

Given 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.

Assuming, in gratia argumenti, that petitioner did not act in bad faith, he cannot plausibly deny that his negligence under the premises was not only gross but also inexcusable. For, although the checks were on their face payable to him even as the supporting disbursement vouchers were in the name of Kelly Lumber, petitioner still affixed his signature thereon. It is unthinkable that such irregularity, given his stature and the nature of his position, would have passed him unnoticed. In turn, his subordinates could not have so easily, and with such daring, presented him with a set of questionable documents - as petitioner would want to impress this Court - without his instructions.

Finally, it is puerile for petitioner to contend that Kelly Lumber’s act of refunding the amount subject of double payment argues against the idea of the government suffering damages. The injury suffered by the government is beyond cavil. This conclusion was aptly explained by the Sandiganbayan in the following wise:

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 Code16 which would totally extinguish criminal liability. Article 89 of the Revised Penal Code applies in a suppletory character as provided for under Article 1017 of the same Code.

As regards the penalty imposed by the respondent court, we find the same to be proper in point of severity, albeit its employment of the term "prision mayor" is inappropriate. It is proper because Section 9 of R.A. 3019 provides:

SECTION 9. Penalties for violations –

(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.

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

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.

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)

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.

WHEREFORE, the instant petition is DENIED and the assailed decision and resolution of the Sandiganbayan AFFIRMED, with the modification that petitioner BUENCAMINO MALLARI-CRUZ is hereby sentenced to a prison term of seven (7) years and one (1) month, as minimum, to ten (10) years, as maximum, with perpetual disqualification from holding public office, as provided by law.

SO ORDERED.

CANCIO C. GARCIA

Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN

Associate Justice

Chairman

ANGELINA SANDOVAL-GUTIERREZ

Associate Justice

RENATO C. CORONA

Associate Justice

CONCHITA CARPIO MORALES

Associate Justice

A T T E S T A T I O N

I attest that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

ARTEMIO V. PANGANIBAN

Associate Justice

Chairman, Third Division

C E R T I F I C A T I O N

Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairman's Attestation, it is hereby certified that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

HILARIO G. DAVIDE, JR.

Chief Justice

Footnotes

1 Penned by Associate Justice German G. Lee, Jr. with Associate Justices Cipriano A. Del Rosario and Teresita Leonardo-De Castro, concurring; Rollo, p. 22 et seq.

2 Rollo, pp. 31 and 32.

3 Rollo, p. 33.

4 See Note #2, supra.

5 See Note #3, supra.

6 151 SCRA 399 [1987].

7 Section 444. The Chief Executive: Powers, Duties, Functions and Compensation. –

(a) The municipal mayor, as the chief executive of the municipal government, shall exercise such powers and performs such duties and functions as provided by this Code and other laws.

(b) For efficient, effective and economical governance the purpose of which is the general welfare of the municipality and its inhabitants pursuant to Section 16 of this Code, the municipal mayor shall:

xxx xxx xxx

(3) Initiate and maximize the generation of resources and revenues, . . ., and relative thereto, shall:

(iv) Issue licenses and permits and suspend or revoke the same for any violation of the conditions upon which said licenses or permits had been issued, pursuant to law or ordinance;

(v) Issue permits, without need of approval therefor from any national agency, for the holding of activities for any charitable or welfare purpose, excluding prohibited games of chance or shows contrary to law, public policy and public morals; (Underscoring supplied)

8 253 SCRA 773, 790 [1996] citing Gallego, et al. vs. Sandiganbayan, 115 SCRA 793 [1982].

9 Rollo, p. 125.

10 Section 9, Rule 110, Revised Rules of Court.

11 180 SCRA 309 [1989]

12 Castillo vs. Sandiganbayan, 151 SCRA425, [1987] citing People vs. Patog, 144 SCRA 429 [1986] and other cases.

13 Page 6 of the appealed decision; Rollo, p. 27

14 Inigo vs. Sandiganbayan, 272 SCRA 563 [1997]; Bautista vs. Sandiganbayan, et al., 332 SCRA 126 [2000], Cabrera, et al. vs. Sandiganbayan, et al., 441 SCRA 377 [2004] citing Jacinto vs. Sandiganbayan, et al., 178 SCRA 254 [1989], Katigbak, et al. vs. Sandiganbayan, 405 SCRA 558 [2003].

15 388 SCRA 307, p. 324 and 326 [2002].

16 ART. 89. How criminal liability is totally extinguished. – Criminal liability is totally extinguished:

1. By the death of the convict, as to the personal penalties; and as to pecuniary penalties, liability therefore is extinguished only when the death of the offender occurs before final judgment.

2. By service of the sentence.

3. By amnesty, which completely extinguishes the penalty and all its effects.

4. By absolute pardon.

5. By prescription of the crime.

6. By prescription of the penalty.

7. By the marriage of the offended woman, as provided in article 344 of this Code.

17 ART. 10. Offenses not subject to the provisions of this Code. – Offenses which are or in the future may be punishable under special laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws, unless the latter should specially provide the contrary.

18 234 SCRA 555, 576 [1994].

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