Friday, February 3, 2012

Malversation of public funds


"x x x.

The elements of malversation of public funds are:

  1. that the offender is a public officer;

  2. that he had the custody or control of funds or property by reason of the duties of his office;

  3. that those funds or property were public funds or property for which he was accountable; and

  4. that he appropriated, took, misappropriated or consented or, through abandonment or negligence, permitted another person to take them.49

There is no dispute on the existence of the first three elements; petitioner admitted having received the cash advances for which he is accountable. As to the element of misappropriation, indeed petitioner failed to rebut the legal presumption that he had misappropriated the said public funds to his personal use, notwithstanding his unsubstantiated claim that he has in his possession liquidation documents. The SB therefore committed neither reversible error nor grave abuse of discretion in convicting the petitioner of malversation for failure to explain or account for his cash shortage by any liquidation or supporting documents. As this Court similarly ruled in one case50:

In the crime of malversation, all that is necessary for conviction is sufficient proof that the accountable officer had received public funds, that he did not have them in his possession when demand therefor was made, and that he could not satisfactorily explain his failure to do so. Direct evidence of personal misappropriation by the accused is hardly necessary as long as the accused cannot explain satisfactorily the shortage in his accounts.

In convicting petitioner, the Sandiganbayan cites the presumption in Article 217, supra, of the Revised Penal Code, i.e., 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, is prima facie evidence that he has put such missing fund or property to personal uses. The presumption is, of course, rebuttable. Accordingly, if the accused is able to present adequate evidence that can nullify any likelihood that he had put the funds or property to personal use, then that presumption would be at an end and the prima facie case is effectively negated. This Court has repeatedly said that when the absence of funds is not due to the personal use thereof by the accused, the presumption is completely destroyed; in fact, the presumption is never deemed to have existed at all. In this case, however, petitioner failed to overcome this prima facie evidence of guilt.

x xx ."