1. ARTICLE 217 MALVERSATION OF PUBLIC FUNDS OR PROPERTY GLORILYN M. MONTEJO

2. ARTICLE 217 Malversation of public funds Art. 217. Malversation of public funds or property – Presumption of malversation. – 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:

3. 1) The penalty of prision correccional in its medium and maximum periods, if the amount involved in the misappropriation or malversation does not exceed two hundred pesos. 2) The penalty of prision mayor in its minimum and medium periods, if the amount involved is more than 200 pesos but does not exceed 6,000 pesos. 3) The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period, if the amount involved is more than 6,000 pesos but is less than 12,000 pesos. 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.

4. ◦ 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 total 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 of property to personal uses. (As amended by RA 1060 approved June 12, 1954.)

5. Q: What are the punishable acts? A: 1.Appropriating public funds or property 2. Taking or misappropriating the same 3. Consenting, or through abandonment or negligence, permitting any other person to take such public funds or property 4. Being otherwise guilty of the misappropriation or malversation of such funds or property.

6. Q: What are the common elements to all acts of malversation? A: 1. Offender is a public officer 2. He had the custody or control of funds or property by reason of the duties of his office 3. Those funds or property were public funds or property for which he was accountable 4. He appropriated, took, misappropriated or consented, or through abandonment negligence, permitted another person to take them

7. Q: Who are “accountable officers”? A: Accountable officers include cashiers, disbursing officers or property custodians and any public officer having custody of public funds or property for which he is accountable. Q: Is it necessary that the offender actually misappropriated the funds? A: No, somebody else may have misappropriated the funds in question. It is enough that he has violated the trust reposed on him in connection with the property.

8. Q: Is it necessary that the offender profited by his malversation? A: No. His being remiss in the duty of safekeeping public funds violates the trust reposed. Q: Is there a crime of malversation through negligence? A: None. The crime is plain malversation whether committed through dolo or culpa.

9. Q: If the charge is for intentional malversation but what was proved was culpable malversation, can the offender be convicted under that Information? A: Yes. The dolo or culpa present in the offense is only a modality in the perpetration of the felony. Even if the mode charged differs from the mode proved, the same offense of malversation is involved and conviction thereof is proper. (People v. Pepito) Q: Is damage to the government necessary to constitute malversation? A: No. It is not an element of the offense. It is enough that the proprietary rights of the government over the funds have been disturbed through breach of trust.

10. Q: Suppose the money is refunded on the same day it was misappropriated, is malversation committed? A: Yes, refund of funds on the same day of misappropriation does not exempt the offender from criminal liability. The return of the funds malversed is only mitigating not exempting circumstance. Q: Suppose the offender is willing to pay the amount misappropriated or willing to make some restitution of the property misappropriated, can he still be liable for malversation? A: Yes, because the payment or restitution does not extinguish criminal liability for malversation but only the civil liability of the offender.

11. Q: If the disbursement of public funds is unauthorized, will that make up a case of malversation? A: No. There is only malversation only if the public officer who has custody of public funds should appropriate, take, misappropriate; or consents or permits any other person, through abandonment or negligence, to take such public funds or property. Note: Where the payment of public funds has been made in good faith renders him only civilly but not criminally liable. (Boado, 2008)

12. Q: A private property was attached or levied by the sheriff, can it be a subject of the crime of malversation? A: Yes, though the property belonged to a private person, the levy or attachment of the property impressed it with the character of being part of the public property it being in custodia legis. Q: Suppose the municipal treasurer allowed a private person’s check to be encashed using the funds in his custody, can he be liable for malversation? A: Yes, the act of changing the cash of the government with the check of a private person, even though the check is good, malversation is committed. Ratio: A check is cleared only after three days. During that period of three days, the government is being denied the use of the public fund.

13. Q: A private property was attached or levied by the sheriff, can it be a subject of the crime of malversation? A: Yes, a private person may also commit malversation under the following situations: 1.Conspiracy with a public officer in committing malversation 2. When he has become an accomplice or accessory to a public officer who commits malversation 3. When the private person is made the custodian in whatever capacity of public funds or property, whether belonging to national or local government, and misappropriates the same 4. When he is constituted as the depositary or administrator of funds or property seized or attached by public authority even though said funds or property belong to a private individual legis.

14. Q: Is demand an element of malversation? A: No. Demand merely raises a prima facie presumption that missing funds have been put to personal use. Q: If falsification of documents was resorted to for the purpose of concealing malversation, is a complex crime committed? A: No, for complex crimes require that one crime is used to commit another. If the falsification is resorted to for the purpose of hiding the malversation, the falsification and malversation are separate offenses. (People v. Sendaydiego)

15. Q: When does presumption of misappropriation arise? A: When a demand is made upon an accountable officer and he cannot produce the fund or property involved. The presumption arises only if at the time the demand to produce the public funds, the accountability of the accused is already determined and liquidated, that is, a complete and trustworthy audit should have been undertaken. Note: The moment any money is commingled with the public fund even if not due the government, it becomes impressed with the characteristic of being part of public funds. An accountable public officer may be convicted of malversation even if there is no direct evidence of misappropriation and the only evidence is the shortage in the accounts which he has not been able to explain satisfactorily.

16. Q: What are the distinctions between malversation and estafa?

17. ARTICLE 217 MALVERSATION OF PUBLIC FUNDS OR PROPERTY CASES

18. LABATAGOS V. SANDIGANBAYAN 183 SCRA 415 FACTS: Labatagos was the cashier and collecting officer of the Mindanao StateUniversity. She filed a leave of absence and did not discharge her duties for thesaid period. When COA conducted the examination, the petitioner did not haveany cash in her possession, so she was asked to produce all her records, booksof collection, copies of official receipts and remittance advices and her monthlyreports of collections. Petitioner incurred shortages. The accused Labatagos was charged and convicted of malversation of public funds after she failed to explain the shortages of the amount she remitted to the bank. It was found out that there were discrepancies in the remittances. ISSUE: W/N Labagtos is guilty of the crime of malversation.

19. HELD: YES. Her claim that she signed the audit report and statement of collections and deposits prepared by the audit team of Francisco Rivera on the understanding that her shortage was only P2,000.00 is belied by the figures clearly reflected on the said documents. Mrs. Ester Guanzon, the prosecution's rebuttal witness, confirmed that she assisted the accused in the collection of fees; that the accused filed application for maternity leave in March 1978 but continued reporting for work during that month; that the accused did not report for work in April 1978; and that she (Guanzon) was the one assigned to collect the fees in her stead. Miss Guanzon, however, explained that she turned over all her collections to the accused during all the times that she was assisting her in collecting the fees; and that even in April 1978 when the accused was physically absent from office, she also turned over her collections to the accused’s house with the duplicate copies of the receipts she issued which the accused signed after satisfying herself that the amounts turned over tallied with the receipts.

20. HELD: All the other sums allegedly taken from the accused by Director Osop, Alikhan Marohombsar and Auditor Casan totalling P31,070.00. (Exhs. 12, 12-A, etc., 13- A and 14-A), supported as they are by mere pieces of paper, despite the admission by Director Osop of having signed some of them (Exhs. 12-A, 12-D, 12-E and 12-I) were not valid disbursements. Granting that the amounts reflected in the chits were really secured by the persons who signed them, the responsibility to account for them still rests in the accused accountable officer. RATIO: Malversation consists not only ill misappropriation or converting public funds or property to one's personal use but also by knowingly allowing others to make use of or misappropriate them.

21. ILOGAN V. SANDIGANBAYAN 218 SCRA 766 FACTS: Accused Ilotogon, an acting Postmaster, was charged with malversation after auditors checked and found out that there were shortages of funds. The accused avers that the missing funds were distributed as cash advance to employees. ISSUE: W/N the accused is guilty of the crime of malversation. HELD: The accused was found guilty. Even if he didn’t use the money himself, he was still liable since the crime of malversation can be committed where the one charged with funds is unable to show such finances after a demand is made.

22. AZARCON V. SANDIGANBAYAN 268 SCRA 747 218 SCRA 766 FACTS: Accused Alfredo L. Azarcon, a private individual but who, in his capacity as depository/administrator of property seized or deposited by the Bureau of Internal Revenue, having voluntarily offered himself to act as custodian of one Isuzu Dumptruck and was authorized to be such under the authority of the BIR, has become a responsible and accountable officer and said motor vehicle having been seized from Jaime C. Ancla in satisfaction of his tax liability in the total sum P80,831.59 became a public property and the value thereof as public fund, with grave abuse of confidence and conspiring and confederating with said Jaime C. Ancla, likewise, a private individual, did then and there wilfully, unlawfully and feloniously misappropriate, misapply and convert to his personal use and benefit the aforementioned motor vehicle or the value thereof in the aforestated amount, by then and there allowing accused Jaime C. Ancla to remove, retrieve, withdraw and tow away the said Isuzu Dumptruck with the authority, consent and knowledge of the Bureau of Internal Revenue, Butuan City, to the damage and prejudice of the government in the amount of P80,831.59 in a form of unsatisfied tax liability.

23. The petitioner filed a motion for reinvestigation before the Sandiganbayan on May 14, 1991, alleging that: (1) the petitioner never appeared in the preliminary investigation; and (2) the petitioner was not a public officer, hence a doubt exists as to why he was being charged with malversation under Article 217 of the Revised Penal Code ISSUE: W/N Alfredo Azarcon and his co-accused Jaime Ancla are guilty of the crime of malversation. HELD: NO. After a thorough review of the case at bench, the Court thus finds Petitioner Alfredo Azarcon and his co-accused Jaime Ancla to be both private individuals erroneously charged before and convicted by Respondent Sandiganbayan which had no jurisdiction over them. From the foregoing discussion, it is evident that the petitioner did not cease to be a private individual when he agreed to act as depositary of the garnished dump truck. Therefore, when the information charged him and Jaime Ancla before the Sandiganbayan for malversation of public funds or property, the prosecution was in fact charging two private individuals without any public officer being similarly charged as a co-conspirator. Consequently, the Sandiganbayan had no jurisdiction over the controversy and therefore all the proceedings taken below as well as the Decision rendered by Respondent Sandiganbayan, are null and void for lack of jurisdiction.

24. PONDEVIDA V. SANDIGANBAYAN 467 SCRA 219 FACTS: ISSUE: W/N the accused is guilty of the crime of malversation.

25. HELD: YES

26. SARIGUMBA V. SANDIGANBAYAN 451 SCRA 533 FACTS: That sometime in November and December 1994 or sometime prior or subsequent thereto in the Municipality of Tudela, Province of Misamis Occidental, and within the jurisdiction of this Honorable Court, above-named accused FELIX L. SARIGUMBA, a high-ranking public officer, being then the Municipal Mayor of Tudela, while in the performance of his official functions, committing the offense in relation to his office, taking advantage of his official positions, did then and there, willfully, unlawfully and feloniously take, embezzle and appropriate unto himself and/or thru abandonment, or gross negligence allowed other parties to misappropriate, embezzle and/or use to some other purpose the total sum of P330,000.00 he had earlier obtained as cash advance from the Municipality intended for the Peace and Order Campaign of the different Barangays of the same municipality, thereby constituting him a special disbursing officer and for which he is accountable, to the damaged (sic) and prejudice of the government and of public interest. ISSUE: W/N the accused is guilty of the crime of malversation.

27. HELD: YES Based on the record, it is true that petitioner Sarigumba did not make use of the P330,000.00 which he received from the Municipal Treasurer which was chargeable to the CDF of Congressman Ramiro; hence, there is no probable cause for the charge of malversation by dolo against him. It must be stressed, however, that the petitioner-mayor is also charged with malversation by culpa under the Information, allegedly committed by distributing P9,500.00 to each of the barangay captains without bothering to inform them that the amount was from the CDF of Congressman Ramiro and that the money should be used for the peace and order campaign in their respective jurisdictions. All along, the barangay captains were of the belief that the amounts they received were from the personal funds of the Congressman and that they had unfettered use of the money, for whatever purpose they chose. The bare fact that the barangay captains were able to return the amounts they received from the petitioner or liquidate the same after demand therefor does not preclude the finding of probable cause for malversation. In malversation of public funds, payment, indemnification, or reimbursement of funds misappropriated, after the commission of the crime, does not extinguish the criminal liability of the offender which, at most, can merely affect the accused's civil liability thereunder and be considered a mitigating circumstance being analogous to voluntary surrender.

28. PEOPLE V. TING LAN UY 475 SCRA 248 FACTS: Sometime in July 1990 in Quezon City, accused Jose Ting Lan Uy, Jr., a public accountable officer, being the Treasurer of National Power Corporation (NARPOCO), Ernesto Gamus and Jaime Ochoa, both public officers being the Manager of the Loan Management and Foreign Exchange Division (LOMAFED) and Foreign Trader Analyst, respectively, also of NAPOCOR, and accused Raul Gutierrez, alias Raul Nicolas, alias George Añonuevo, alias Mara Añonuevo, a private individual being a foreign exchange trader, said public officers taking advantage of their official positions, with grave abuse of authority and committing the offense in relation to their office, conspiring, confederating and mutually helping one another, with their private co-accused, did then and there willfully, unlawfully and feloniously falsify or cause to be falsified the NPC's application for managers checks with the Philippine National Bank (PNB), NPC Branch in the total amount of P183,805,291.25, intended for the purchase of US dollars from the United Coconut Planters Bank (UCPB), by inserting the account number of Raul Gutierrez SA-111-121204-4,

29. when in truth and in fact as the accused well knew that the Payment Instructions (PI) when signed by the NAPOCOR authorities did not indicate the account number of Raul Gutierrez, thereby making alteration or intercalation in a genuine document which changes its meaning, and with the use of the said falsified commercial documents, accused succeeded in diverting, collecting and receiving the total amount of P183,805,291.75 from the NAPOCOR, which they thereafter malverse, embezzle, misappropriate and convert to their own personal use and benefit to the damage and prejudice of the National Power Corporation in the aforementioned sum. Appellant insists that he could not be convicted under the allegations in the information without violating his constitutional right to due process and to be informed of the accusation against him. He points out that the information alleges willful and intentional commission of the acts complained of while the judgment found him guilty of inexcusable negligence amounting to malice. ISSUE: W/N the accused is guilty of the crime of malversation.

30. HELD: YES Appellant's contention lacks merit. Malversation may be committed either through a positive act of misappropriation of public funds or property or passively through negligence by allowing another to commit such misappropriation. [9] To sustain a charge of malversation, there must either be criminal intent or criminal negligence [10] and while the prevailing facts of a case may not show that deceit attended the commission of the offense, it will not preclude the reception of evidence to prove the existence of negligence because both are equally punishable in Article 217 of the Revised Penal Code. More pointedly, the felony involves breach of public trust, and whether it is committed through deceit or negligence, the law makes it punishable and prescribes a uniform penalty therefor. Even when the information charges willful malversation, conviction for malversation through negligence may still be adjudged if the evidence ultimately proves that mode of commission of the offense.

31. BARRIGA V. SANDIGANBAYAN 457 SCRA 301 FACTS: That in or about January 1996 in the Municipality of Carmen, Province of Cebu and within the jurisdiction of this Honorable Court, accused VIRGINIO E. VILLAMOR and DINAH C. BARRIGA, both public officers, being then the Municipal Mayor and Municipal Accountant, respectively, had in their possession and custody public funds amounting to P23,047.20 intended for the payment of Five (5) rolls of Polyethylene pipes to be used in the Corte- Cantumog Water System Project of the Municipality of Carmen, Cebu, for which they are accountable by reason of the duties of their office, in such capacity and committing the offense in relation to office, conniving and confederating together and mutually helping each other, did then and there willfully, unlawfully and feloniously misappropriate, take, embezzle and convert into their own personal use and benefit said amount of P23,047.20, and despite demands made upon them to account for said amount, they have failed to do so, to the damage and prejudice of the government. ISSUE: W/N the accused is guilty of the crime of malversation.

32. HELD: YES The court agree with the ruling of the Sandiganbayan that the public office of the accused Municipal Mayor Virginio E. Villamor is a constituent element of malversation and illegal use of public funds or property. Accused mayor's position is classified as SG 27. Since the Amended Informations alleged that the petitioner conspired with her co-accused, the municipal mayor, in committing the said felonies, the fact that her position as municipal accountant is classified as SG 24 and as such is not an accountable officer is of no moment; the Sandiganbayan still has exclusive original jurisdiction over the cases lodged against her. It must be stressed that a public officer who is not in charge of public funds or property by virtue of her official position, or even a private individual, may be liable for malversation or illegal use of public funds or property if such public officer or private individual conspires with an accountable public officer to commit malversation or illegal use of public funds or property.

33. PEOPLE VS SENDAYDIEGO 81 SCRA 120 FACTS:

34. ISSUE: W/N the appellants are liable for six crimes of malversation. HELD: YES Samson is convicted of six crimes of falsification of a public document and six crimes of malversation. For the malversation of the sum of P16,727.52 covered by voucher No. 10724 (Exh. K), Samson is sentenced to an indeterminate penalty of twelve (12) years of prision mayor maximum, as minimum, to seventeen (17) years of reclusion temporal medium, as maximum; to pay a fine in the amount of P16,727.52, and to indemnify the province of Pangasinan in the same amount (Criminal Case NO. 23349, L-33252). For the malversation of the sum of P14,571.81 covered by voucher No. 11995 (Exh. O), Samson is sentenced to an indeterminate penalty of twelve (12) years of prision mayor maximum, as minimum, to seventeen (17) years of reclusion temporal medium, as maximum; to pay a fine in the sum of P14,571.81, and to indemnify the province of Pangasinan in the same amount (Criminal Case No. 23351, L-33254). For the malversation of the sum of P6,290.60 covered by voucher No. 11870 (Exh. Q), Samson is sentenced to an indertiminate penalty of nine (9) years of prision mayor medium, as minimum, to thirteen (13) years of reclusion temporal minimum, as maximum; to pay a fine of P6,290.60, and to indemnify the province of Pangasinan in the same amount (Criminal Case No. 23350, L-33253).

35. For the malversation of the sum of P9,769.64 covered by voucher No. 11871 (Exh. R), Samson is sentenced to an indeterminate penalty of nine (9) years of prision mayor medium, as minimum, to thirteen (13) years of reclusion temporal minimum, as maximum; to pay a fine of P9,769.64, and to indemnify the province of Pangasinan in the same amount (Criminal Case No. 23350, L-33253). For the malversation of the sum of P5,187.28, covered by voucher No. 11869 (Exh. P), Samson is sentenced to an indeterminate penalty of five (5) years of prision correccional maximum, as minimum, to eight (8) of prision mayor minimum, as maximum; to pay a fine of P5,187.28, and to indemnify the province of Pangasinan in the same amount (Criminal Case No. 23350, L-33253). For the malversation of the sum of P4,501.38 covered by voucher no. 11872 (Exh. S), Samson is sentenced to an indeterminate penalty of five (5) years of prision correccional maximum, as minimum, to eight (8) years of prision mayor minimum, as maximum; to pay a fine of P4,501.38, and to indemnify the province of Pangasinan in the same amount (Criminal Case No. 23350, L-33253).

36. In the service of the twelve penalties meted to Samson, the threefold limit provided for in article 70 of the Revised Penal Code should be observed, meaning that the maximum penalty that he should serve is three times the indeterminate sentence of twelve (12) years to seventeen (17) years, the severest penalty imposed on him, or thirty-six (36) years to fifty-one (51) years. The maximum duration of his sentences should not exceed forty (40) years. The estate of the late Licerio P. Sendaydiego is ordered to indemnify the province of Pangasinan in the sum of P57,048.23. Samson and the said estate are solitarily liable for the said indemnity (Art. 110, Revised Penal Code). Samson should pay one-half of the costs. SO ORDERED.

37. END