Sunday, March 05, 2006


Final point on the crime of malversation: Although the crime of intentional malversation includes malversation committed through negligence, or {rather than neglect of duties}, the crime of technical malversation is not necessarily included in the crime of simple malversation. So if a public officer was charged for simple malversation under Article 217 of the Code, but during the trial, the evidence shows that the missing fund or property was applied to public use, and the crime therefore would be technical malversation, the trial court should then suspend the proceedings, and require the prosecutor to file the proper information for technical malversation. Otherwise, if the trial court will proceed and then render judgment against the accused for technical malversation, the judgment is null and void. The constitutional right of the accused to be informed of the nature and cause of the accusation against him will be violated. This is so because the evidence required for conviction in simple malversation is materially different from the evidence required in technical malversation.

Where the prosecutor therefore had adduced evidence to show that the missing fund supposedly misappropriated by the Accused where in fact applied to public use and thus bring about liability for technical malversation under Article 220 of the RPC, the court should suspend the proceedings and direct the prosecutor to file the proper information for technical malversation.

Where the Accused is in custody, he should not be discharged and set possibly on bail. The original information should not be dismissed until the proper information for technical malversation has been filed. The accused must be re-arraigned for the new information, and his plea thereto must be taken down. The prosecutor and the defense may then stipulate that the evidence already adduced under the original information shall be re-offered as the same evidence in support of the technical malversation. In other words, it is not necessary that the evidence be adduced all over again. Whatever evidences have been taken may by stipulation between the prosecution and the defense counsel be considered as the same evidence presented for the case of technical malversation. Only thereafter may the court render a valid judgment finding the Accused guilty of technical malversation. THIS IS THE PROCEDURAL ASPECT IN A CASE WHERE THE OFFICIAL CHARGED FOR CRIME OF SIMPLE MALVERSATION under Article 220 - that the court where the trial of the accused is pending would show that the fund or property that was missing was not misappropriated for his private use or benefit that would show that this was applied to some other public purpose. So the crime being established by evidence --- Malversation under Article 220 which is the misappropriation of the public fund or property. In such a case, the court will not have jurisdiction over the crime because that is not necessarily included in the information for simple malversation. It is entirely new accusation before the trial court to suspend the proceeding require the prosecution to file the proper information for technical malversation. This is the proper procedure that should be adopted, not for the court to receive with the trial. This is exactly the subject of a bar problem sometime in 1986 or before that, about a crime charged for simple malversation but in the course of the trial, what was proven was technical malversation, and the trial court proceeded to convict the accused on this ground. SC ruled the sentence is null and void.
Under Article 217 on malversation, you have here a presumption that the public officer accountable for the missing fund or property has misappropriated the same IF he could not have the fund or property forthcoming after due demand therefore be made. The presumption arises that he had misappropriated the missing fund or property, hence a case of malversation. The constitutionality of this presumption has been assailed several times, and the SC upheld the constitutionality of the provision. It does not really shift the burden upon the defense to prove that he is {indeed} innocent. The presumption merely calls on the public officer accountable for the missing fund or property to explain what happened thereto. Only if he could not explain would the presumption arise that he had used it for his own private benefit or gain.

Now you get this clear: the presumption DOES NOT ARISE from the mere fact that there was a shortage in the accountability of the public officer. The presumption does not arise from the mere fact that there were funds or property that turned out to be unaccounted for. Before the presumption would arise, it must indubitably shown by proper audit or evidence that the funds or property demanded has not been used for any other government purpose since it may simply be a shortage resulting from inaccurate accounting. So the evidence must show that the missing fund or property should be in the custody of the public officer accountable therefore, but he cannot explain what happen thereto.

If therefore, the public officer accountable for the fund or property had so many accounts, an audit should be conducted of all the accounts. The audit must be complete. A partial audit will not bring about the presumption. The audit must be COMPLETE. It must be THOROUGH, and unquestionably RELIABLE & TRUSTWORTHY.

When there is doubt as to the findings of the auditor, the public officer accused for malversation can only be convicted on the basis of DIRECT evidence of malversation, not on mere presumption.
So if the public officer accountable for the government funds or property had procured using public fund. He had his office in the city, and he has also somebody stationed in the field where it is being incurred by the others. An audit of his account in the city will not be the basis for the presumption to arise that certain city funds which he could not account for has been misappropriated. In this situation, SC said, “What may not be shown by the records in the city, they be in the various station where the accused is also there. So an audit must be conducted also in the various offices. So unless the audit is complete, there can be no conviction indubitably showing that the accused had suffered some falsity in his accountabilities. High court: “Malversation is a crime for wilfull consequences, and so it cannot be taken lightly because the accused here if convicted would be forever barred from employment in the government, aside from the heavy penalty for the crime involved. {Let this be your guide in invoking this crime} The mere fact that the only audit would show shortage does not bring the presumption that the PO accountable therefore had applied this to his private use or benefit. Only an accounting audit would establish beyond doubt that the said public property that he has use to that he cannot explain where it was or what happened there. Only then will the presumption arise because only that public officer can explain what happened to the fund or property under his accountability. If that is not the situation, the direct evidence of malversation is necessary.

*Now under this crime, you have instances where private citizen may incur the crime of Malversation. The Instances are:
1) when the private citizen conspires with the public officer committing malversation;
2) when private citizen cooperates as an accomplice or accessory to a public officer committing malversation;
3) when a private citizen has been named the recipient in whatever capacity of funds or properties accountable to the government, and such private citizen misappropriated the same, whether the fund or property belong to the local government or national government;
4) when the private citizen is constituted as an administrator or depositary of funds or property that has been seized, attached, or deposited by public authorities, even though that funds or property belong to a private individual. {You have this clear provsion in Article 222}

Get it clear that even though the fund or property involved belongs to a private
citizen,for as long the public officer or person in custody thereof is under obligation in law to account for those funds or property to the government, any misappropriation thereof will bring about the crime of malversation, not the crime of theft or estafa. So I emphasize to you last time that the crime of malversation is prosecuted on the relation of the offender to the fund or property involved --- he must be the one accountable therefore, otherwise, he cannot commit the crime of malversation.


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