CRIMLAW

G.R. No. L-7295 June 28, 1957 PHILIPPINES, plaintiff-appellee, and JOSE Jose Padan FAJARDO, defendants. Fajardo. Alova.

THE PEOPLE OF THE vs. MARINA PADAN Y ALOVA, COSME ESPINOSA, ERNESTO REYES MARINA PADAN Y ALOVA and JOSE FAJARDO, defendants-appellants. Augusto Revilla for appellant W. M. Bayhon for appellant Marina Office of the Solicitor General Ambrosio Padilla and Solicitor Jose P. Alejandro for appellee. MONTEMAYOR, J.:

In the Court of First Instance of Manila, Marina Padan, Jose Fajardo y Garcia, Cosme Espinosa, and Ernesto Reyes were charged with a violation of Article 201 of the Revised Penal Code, said to have been committed as follows: That on or about the 13th day of September, 1953, in the city of Manila, Philippines, the said accused conspiring and confederating together and mutually helping one another, did then and there willfully, unlawfully and feloniously exhibit or cause to be exhibited inside a building at the corner of Camba Ext. and Morga Ext., Tondo, this City, immoral scenes and acts, to wit: the said accused Jose Fajador y Garcia, being then the manager and Ernesto Reyes y Yabut, as ticket collector and or exhibitor, willfully ,unlawfully and feloniously hired their co-accused Marina Palan y Alova and Cosme Espinosa y Abordo to act as performers or exhibitionists to perform and in fact performed sexual intercourse in the presence of many spectators, thereby exhibiting or performing highly immoral and indecent acts or shows thereat. Upon arraignment, all pleaded not guilty. Later, however, Marina Padan, with the assistance of her counsel de parte and counsel de oficio, asked for permission to withdraw her former plea of not guilty, which was granted, and upon rearraignment, she pleaded guilty to the charge. In a decision dated October 12, 1953, Marina Padan was found guilty as charged and sentenced to six months and one day of prision correccional and a fine of P200, with subsidiary imprisonment in case of insolvency, not to exceed one-third of the principal penalty, with the accessory penalties prescribed by the law, and to pay the proportionate costs. After trial of the three remaining accused, they were all found guilty; Cosme Espinosa and Ernesto Reyes were sentenced each to not less than six months and one day of prision correccional and not more than one year, one month and eleven days of prision correccional, to pay a fine of P500, with subsidiary imprisonment in case of insolvency, not to exceed one-third of the principal penalty, and to pay the proportionate costs. Jose Fajardo was sentenced to not less than one year, one month and ten days of prision correccional and not more than one year eight months and twenty days, also of prision correccional, to pay a fine of P1,000, with subsidiary imprisonment in case of insolvency, not to exceed one-third of the principal penalty and to pay the proportionate costs. The army steel bed, the army woolen blanket, the pillow, the ladies' panties, and the men's underwear, described in Exhibit C, were declared confiscated. The four accused appealed in the decision, the appeal having been sent to us. Appellants Espinosa and Reyes failed to file their briefs within the period prescribed by law and their appeal was dismissed by resolution of this Court of November 25, 1955, and the decision as to them became final and executory on January 7, 1956, as appears from the entry of judgment. Because of her plea of guilty in the lower court, appellant Marina in her appeal do not question her conviction; she merely urges the reduction of the penalty by eliminating the prison sentence. We do not feel warranted in interfering with the exercise of discretion in this matter, made by the lower court presided by Judge Magno S. Gatmaitan. According to his decision of October 12, 1953, in imposing the sentence, he already considered Marina's plea of leniency, and so despite the recommendation of the fiscal that she be fined P600.00 in addition to the prison sentence of six months and one day, his honor reduced the fine to only P200. MARINAS APPEAL: We believe that the penalty imposed fits the crime, considering its seriousness. As far as we know, this is the first time that the courts in this jurisdiction, at least this Tribunal, have been called upon to take cognizance of an offense against morals and decency of this kind. We have had occasion to consider offenses like the exhibition of still moving pictures of women in the nude, which we have condemned for obscenity and as offensive to morals. In those cases, one might yet claim that there was involved the element of art; that connoisseurs of the same, and painters and sculptors might find inspiration in the showing of pictures in the nude, or the human body exhibited in sheer nakedness, as models in tableaux vivants. But an actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no redeeming feature. In it, there is no room for art. One can see nothing in it but clear and unmitigated obscenity, indecency, and an offense to public morals, inspiring and causing as it does, nothing but lust and lewdness, and exerting a corrupting influence specially on the youth of the land. We repeat that because of all this, the penalty imposed by the trial court on Marina, despite her plea of guilty, is neither excessive nor unreasonable. FAJARDOS CONTENTION:

Going to the appeal of Jose Fajardo y Garcia, while he does not deny the fact of the commission of the offense charged, he insists that he was not the manager or the person incharge of the show or proceedings on the night of September 13, 1953; that his participation, if he participate at all, was to play the role of an innocent bystander, but that because of his popularity in the neighborhood, being popularly known as a "siga-siga" character, he was requested by the spectators to select the man and the woman to engage or indulge in the actual act of coitus before the spectators; that after making the selection, he did not even care to witness the act but left the scene and returned to it only when he heard a commotion produced by the raid conducted by the police. The evidence on his active participation and that he was the manager and one in charge of the show is however ample, even conclusive. We have carefully examined such evidence, and we are satisfied that they fully support the findings of the trial court. Such facts may be briefly stated as follows: At the corner of Morga Extension and Camba Extension, Tondo, Manila, was a one story building which judging from the picture exhibited is nothing but a shed, with a floor space of eight by fifteen meters which was mainly used for playing ping-pong. A ping-pong table must have been placed in the center and on two sides were built benches in tiers, so that the spectators seated on them could look down and see the game. On September 13, 1953, however, the building was used for a different purpose. It was to be the scene of what was said to be an exhibition of human "fighting fish", the actual act of coitus or copulation. It must have been advertised by word of mouth; tickets therefor were sold at P3 each, and the show was supposed to begin at 8:00 o'clock in the evening. About that time of the night, there was already a crowd around the building, but the people were not admitted into it until about an hour later, and the show did not begin until about 9:15. The Manila Police Department must have gotten wind of the affair; it bought tickets and provided several of its members who later attended the show, but in plain clothes, and after the show conducted a raid and made arrests. At the trial, said policemen testified as to what actually took place inside the building. About two civilians who attended the affair gave testimony as to what they saw. The customers not provided with tickets actually paid P3 at the entrance to defendant Ernesto Reyes. He also collected tickets. In all, there were about ninety paying customers, while about sixteen were allowed to enter free, presumably friends of the management. Jose Fajardo y Garcia was clearly the manager of the show. He was at the door to see to it that the customers either were provided with tickets or paid P3.00 entrance fee. He even asked them from whom they had bought the tickets. He ordered that an army steel bed be placed at the center of the floor, covered with an army blanket and provided with a pillow. Once the spectators, about 106 in number, were crowded inside that small building, the show started. Fajardo evidently to arouse more interest among the customers, asked them to select among two girls presented who was to be one of the principal actors. By pointing to or holding his hand over the head of each of the two women one after the other, and judging by the shouts of approval emitted by the spectators, he decided that defendant Marina Padan was the subject of popular approval, and he selected her. After her selection, the other woman named Concha, left. Without much ado, Fajardo selected Cosme Espinosa to be Marina's partner. Thereafter, Cosme and Marina proceeded to disrobe while standing around the bed. When completely naked, they turned around to exhibit their bodies to the spectators. Then they indulged in lascivious acts, consisting of petting, kissing, and touching the private parts of each other. When sufficiently aroused, they lay on the bed and proceeded to consummate the act of coitus in three different positions which we deem unnecessary to describe. The four or five witnesses who testified for the Government when asked about their reaction to what they saw, frankly admitted that they were excited beyond description. Then the police who were among the spectators and who were previously provided with a search warrant made the raid, arrested the four defendants herein, and took pictures of Marina and Cosme still naked and of the army bed, which pictures were presented as exhibits during the trial. From all this, there can be no doubt that Jose Fajardo y Garcia contrary to what he claims, was the person in charge of the show. Besides, as found by the trial court and as shown by some of the tickets collected from the spectators, submitted as exhibits, said tickets while bearing on one side printed matter regarding an excursion to Balara to be held on August 30, 1953 from 7:00 a.m. to 5:00 p.m., sponsored by a certain club, on the other side appears the following typewritten form, reading: P3.00 Admit one PLEASURE SHOW Place: P. Morga Ext. and Camba Ext. Time : 8:00 o'clock sharp, and superimposed on the same is the rubber stamped name "Pepe Fajardo," which defendant Fajardo admits to be his name. Considering all the above circumstances, we agree with the trial court that Jose Fajardo is the most guilty of the four, for he was the one who conducted the show and presumably derived the most profit or gain from the same. As regards the penalty imposed by the trial court on appellant Fajardo, we agree with the Solicitor General that the same is correct, except the minimum thereof which is beyond the legal range, and which should be reduced from one year, one month, and ten days of prision correccional to only six months of arresto mayor. With the modification above-mentioned, the decision appealed from by Marina Padan and Jose Fajardo are hereby affirmed, with costs against both. Paras, C.J., Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Endencia and Felix, JJ.,concur. MANUEL F. vs. HON. RUPERTO KAPUNAN, JR., and THE CITY FISCAL OF MANILA, respondents. CABAL, petitioner,

Francisco Carreon Assistant City Fiscal Manuel T. Reyes for respondent City of Manila. CONCEPCION, J.:

for

petitioner.

This is an original petition for certiorari and prohibition with preliminary injunction, to restrain the Hon. Ruperto Kapunan, Jr., as Judge of the Court of First Instance of Manila, from further proceeding in Criminal Case No. 60111 of said court, and to set aside an order of said respondent, as well as the whole proceedings in said criminal case. . On or about August 1961, Col. Jose C. Maristela of the Philippine Army filed with the Secretary of National Defense a letter-complaint charging petitioner Manuel Cabal, then Chief of Staff of the Armed Forces of the Philippines, with "graft, corrupt practices, unexplained wealth, conduct unbecoming of an officer and gentleman dictatorial tendencies, giving false statements of his as sets and liabilities in 1958 and other equally reprehensible acts". On September 6, 1961, the President of the Philippines created a committee of five (5) members, consisting of the ff: 1. former Justice Marceliana R. Montemayor, as Chairman 2. former Justices Buenaventura Ocampo and Sotero Cabahug, and 3. Generals Basilio J. Valdez and Guillermo B. Francisco

to investigate the charge of unexplained wealth contained in said letter-complaint and submit its report and recommendations as soon as possible. At the beginning of the investigation, on September 15, 1961, the Committee, upon request of complainant Col. Maristela, or considered petitioner herein to take the witness stand and be sworn to as witness for Maristela, in support of his aforementioned charge of unexplained wealth. Thereupon, petitioner objected, personally and through counsel, to said request of Col. Maristela and to the aforementioned order of the Committee, invoking his constitutional right against self-incrimination. The Committee insisted that petitioner (Mr. Cabal) take the witness stand and be sworn to, subject to his right to refuse to answer such questions as may be incriminatory. This notwithstanding, Mr. Cabal respectfully refused to be sworn to as a witness to take the witness stand. Hence, in a communication dated September 18, 1961, the Committee referred the matter to respondent City Fiscal of Manila, for such action as he may deem proper. On September 28, 1961, the City Fiscal filed with the Court of First Instance of Manila a "charge" reading as follows: The undersigned hereby charges Manuel F. Cabal with CONTEMPT under section 580 of the Revised Administrative Code in relation to sections I and 7, Rule 64 of the Rules of Court, committed as follows: That on or about September 15, 1961, in the investigation conducted at the U.P. Little Theater:, Padre Faura, Manila, by the Presidential Committee, which was created by the President of the Republic of the Philippines in accordance with law to investigate the charges of alleged acquisition by respondent of unexplained wealth and composed of Justice Marceliano Montemayor, as Chairman, and Justices Buenaventura Ocampo and Sotero Cabahug and Generals Basilio Valdez and Guillermo Francisco, as members, with the power, among others, to compel the attendance of witnesses and take their testimony under oath, respondent who was personally present at the time before the Committee in compliance with a subpoena duly issued to him, did then and there willfully, unlawfully, and contumaciously, without any justifiable cause or reason refusal and fail and still refuses and fails to obey the lawful order of the Committee to take the witness stand, be sworn and testify as witness in said investigation, in utter disregard of the lawful authority of the Committee and thereby obstructing and degrading the proceedings before said body. Wherefore, it is respectfully prayed that respondent be summarily adjudged guilty of contempt of the Presidential Committee and accordingly disciplined as in contempt of court imprisonment until such time as he shall obey the subject order of said committee. This charge, docketed as Criminal Case No. 60111 of said court, was assigned to Branch XVIII thereof, presided over by respondent Judge. On October 2, 1961, the latter issued an order requiring petitioner to show cause and/or answer the charge filed against him within ten (10) days. Soon thereafter, or on October 4, 1961, petitioner filed with respondent Judge a motion to quash the charge and/or order to show cause, upon the ground: (1) that the City Fiscal has neither authority nor personality to file said charge and the same is null and void, for, if criminal, the charge has been filed without a preliminary investigation, and, civil, the City Fiscal may not file it, his authority in respect of civil cases being limited to representing the City of Manila;

(2) that the facts charged constitute no offense for section 580 of the Revised Administrative Code, upon which the charge is based, violates due process, in that it is vague and uncertain as regards the offense therein defined and the fine imposable therefor and that it fail to specify whether said offense shall be treated also contempt of an inferior court or of a superior court (3) that more than one offense is charged, for the contempt imputed to petitioner is sought to be punished as contempt of an inferior court, as contempt of a superior court an as contempt under section 7 of Rule 64 of the Rules Court; (4) that the Committee had no power to order an require petitioner to take the witness stand and be sworn to, upon the request of Col. Maristela, as witness for the latter, inasmuch as said order violates petitioner's constitutional right against self-incrimination. CABALS CONTENTION: By resolution dated October 14, 1961. respondent Judge denied said motion to quash. Thereupon, or on October 20, 1961, petitioner began the present action for the purpose adverted to above, alleging that, unless restrained by this court, respondent Judge may summarily punish him for contempt, and that such action would not be appealable. KAPUNANS CONTENTION: In their answer, respondents herein allege, inter alia, that the investigation being conducted by the Committee above referred to is administrative, not criminal, in nature; that the legal provision relied upon by petitioner in relation to preliminary investigations (Section '08-C, Republic Act No. 409, as amended by Republic Act No. 1201) is inapplicable to contempt proceedings; that, under section 580 of the Revised Administrative Code. contempt against an administrative officer is to be dealt with as contempt of a superior court; that petitioner herein is charged with only one offense; and that, tinder the constitutional guarantee against self-incrimination, petitioner herein may refuse, not to take the witness stand, but to answer incriminatory questions. THE ACCUSED IN A CRIMINAL CASE MAY REFUSE TO ANSWER INCRIMINATORY QUESTIONS AND TAKE THE WITNESS STAND; HOWEVER, SUCH IS INAPPLICABLE WHEN IT COMES TO ADMINISTRATIVE CASES. At the outset, it is not disputed that the accused in a criminal case may refuse, not only to answer incriminatory questions, but, also, to take the witness stand (3 Wharton's Criminal Evidence, pp. 1959-1960; 98 C.J.S., p. 264). Hence, the issue before us boils down to whether or not the proceedings before the aforementioned Committee is civil or criminal in character. In this connection, it should be noted that, although said Committee was created to investigate the administrative charge of unexplained wealth, there seems to be no question that Col. Maristela DOES NOT SEEK THE REMOVAL of petitioner herein as Chief of Staff of the Armed Forces of the Philippines. As a matter of fact he no longer holds such office. It seems, likewise conceded that the purpose of the charge against petitioner is to apply the provisions of Republic Act No. 1379, as amended, otherwise known as the Anti-Graft Law, which authorizes the forfeiture to the State of property of a public officer or employee which is manifestly out of proportion to his salary as such public officer or employee and his other lawful income and the income from legitimately acquired property. Such for forfeiture has been held, however, to partake of the nature of a penalty. In a strict signification, a forfeiture is a divestiture property without compensation, in consequence of a default an offense, and the term is used in such a sense in this article. A FORFEITURE, as thus defined, is imposed by way of punishment not by the mere convention of the parties, but by the lawmaking power, to insure a prescribed course of conduct. It is a method deemed necessary by the legislature to restrain thecommission of an offense and to aid in the prevention of such a offense. The effect of such a forfeiture is to transfer the title to the specific thing from the owner to the sovereign power (23 Am. Jur. 599) (Emphasis ours.) In Black's Law Dictionary a FORFEITURE is defined to be "the incurring of a liability to pay a definite sum of money as the consequence of violating the provisions of some statute or refusal to comply with some requirement of law." It may be said to be a penalty imposed for misconduct or breach of duty. (Com. vs. French, 114 S.W. 255.) As a consequence, proceedings for forfeiture of proper are deemed criminal or penal, and, hence, the exemption of defendants in criminal case from the obligation to be witnesses against themselves are applicable thereto. Generally speaking, informations for the forfeiture of goods that seek no judgment of fine or imprisonment against any person are deemed to be civil proceedings in rem. Such proceedings are criminal in nature to the extent that where the person using the res illegally is the owner or rightful possessor of it, the forfeiture proceeding is in the nature of a punishment. They have been held to be so far in the nature criminal proceedings that a general verdict on several count in an information is upheld if one count is good.According to the authorities such proceedings, where the owner of the property appears, are so far considered as quasi-criminal proceeding as to relieve the owner from being a witness against himself and to prevent the compulsory production of his books and papers. ... (23 Am. Jur. 612; emphasis ours.)

Although the contrary view formerly obtained, the late decisions are to the effect that suits for forfeitures incurred by the commission of offenses against the law are so far of quasi-criminal nature as to be within the reason of criminal proceedings for all purposes of ... that portion of the Fifth Amendment which declares that no person shall be compelled in any criminal case to be a witness against himself. .... It has frequently been held upon constitutional grounds under the various State Constitution, that a witness or party called as witness cannot be made to testify against himself as to matters which would subject his property to forfeiture. At early common law no person could be compelled to testify against himself or to answer any question which would have had a tendency to expose his property to a forfeiture or to form a link in a chain of evidence for that purpose, as well as to incriminate him. Under this common-law doctrine of PROTECTION AGAINST COMPULSORY DISCLOSURES which would tend to subject the witness to forfeiture, such protection was claimed and availed of in some early American cases without placing the basis of the protection upon constitutional grounds. (23 Am. Jur., 616; emphasis ours.) Proceedings for forfeitures are generally considered to be civil and in the nature of proceedings in rem. The statute providing that no judgment or other proceedings in civil cases shall be arrested or reversed for any defect or want of form is applicable to them. In some aspects, however, suits for penalties and forfeitures are of quasi-criminal nature and within the reason of criminal proceedings for all the purposes of ... that portion of the Fifth Amendment which declares, that no person shall be compelled in any criminal case to be a witness against himself. The proceeding is one against the owner, as well as against the goods; for it is his breach of the laws which has to be proved to establish the forfeiture and his property is sought to be forfeited. (15 Am. Jur., Sec. 104, p. 368; emphasis ours.)lawphil.net The rule protecting a person from being compelled to furnish evidence which would incriminate him existsnot only when he is liable criminally to prosecution and punishment, but also when his answer would tend to expose him to a ... forfeiture .... (58 Am. Jur., See. 43, p. 48; emphasis ours.) As already observed, the various constitutions provide that no person shall be compelled in any criminal case to be a witness against himself. NOTE: This prohibition against compelling a person to take the stand as a witness against himself applied only to criminal, quasi-criminal, and penal proceedings, including a proceeding civil in form for forfeiture of property by reason of the commission of an offense, but not a proceeding in which the penalty recoverable is civil or remedial in nature, The privilege of a witness not to incriminate himself is not infringed by merely asking the witness a question which he refuses to answer. The privilege is simply an option of refusal, and not a prohibition of inquiry. A question is not improper merely because the answer may tend to incriminate but, where a witness exercises his constitutional right not to answer, a question by counsel as to whether the reason for refusing to answer is because the answer may tend to incriminate the witness is improper. The possibility that the examination of the witness will be pursued to the extent of requiring self-incrimination will not justify the refusal to answer questions. However, where the position of the witness is virtually that of an accused on trial, it would appear that he may invoke the privilege in support of a blanket refusal to answer any and all questions. (C.J.S., p. 252; emphasis ours.) A person may not be compelled to testify in an action against him for a penalty or to answer any question as a witness which would subject him to a penalty or forfeiture, where the penalty or forfeiture is imposed as a vindication of the public justice of the state. In general, both at common law and under a constitution provision against compulsory self-incrimination, a person may not be compelled to answer any question as a witness which would subject him to a penalty orforfeiture, or testify in action against him for a penalty. The privilege applies where the penalty or forfeiture recoverable, or is imposed in vindication of the public justice the state as a statutory fine or penalty, or a fine or penalty for violation of a municipal ordinance, even though the action or proceeding for its enforcement is not brought in a criminal court but is prosecuted through the modes of procedure applicable to ordinary civil remedy. (98 C. J. S., pp. 275-6.) Thus, in Boyd vs. U.S. (116 U.S. 616, 29 L. ed. 746), it was held that the information, in a proceeding to declaration a forfeiture of certain property because of the evasion of a certain revenue law, "though technically a civil proceeding is in substance and effect a criminal one", and that suits for penalties and forfeitures are within the reason criminal proceedings for the purposes of that portion the Fifth Amendment of the Constitution of the U.S. which declares that no person shall be compelled in a criminal case to be a witness against himself. Similarly, a proceeding for the removal of an officer was held, in Thurston vs. Clark (107 Cal. 285, 40 pp. 435, 437), to be in substance criminal, for said portion of the Fifth Amendment applies "to all cases in which the action prosecution is not to establish, recover or redress private and civil rights, but to try and punish persons charged with the commission of public offenses" and "a criminal case is a action, suit or cause instituted to punish an infraction the criminal laws, and, with this object in view, it matters not in what form a statute may clothe it; it is still a criminal case ...". This view was, in effect confirmed in Lees vs. U.S. (37 L. ed. 11501151). Hence, the Lawyer Reports Annotated (Vol. 29, p. 8), after an extensive examination of pertinent cases, concludes that said

constitutional provision applies whenever the proceeding is not "purely remedial", or intended "as a redress for a privategrievance", but primarily to punish "a violation of duty or a public wrong and to deter others from offending in likewise manner. ...". We are unmindful of the doctrine laid down in Almeda vs. Perez, L-18428 (August 30, 1962) in which the theory that, after the filing of respondents' answer to a petition for forfeiture under Republic Act No. 1379, said petition may not be amended as to substance pursuant to our rules of criminal procedure, was rejected by this Court upon the ground that said forfeiture proceeding in civil in nature. This doctrine refers, however, to the purely proceduralaspect of said proceeding, and has no bearing the substantial rights of the respondents therein, particularly their constitutional right against self-incrimination. WHEREFORE, the writ prayed for is granted and respondent Judge hereby enjoined permanently from proceeding further in Criminal Case No. 60111 of the Court of First Instance of Manila. It is so ordered. Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur. Bengzon, C.J., is on leave. REPUBLIC OF THE PHILIPPINES, petitioner, vs. INTERMEDIATE APPELLATE COURT, SIMPLICIO BERDON, GAUDIOSA BERDON and LUIS BERDON,respondents. The Solicitor General for petitioner. Bernardito A. Florido for private respondents.

CORTES, J.: The Republic assails as erroneous the decision of the Intermediate Appellate Court affirming that of the Court of First Instance which dismissed the petition for forfeiture of unexplained wealth under Republic Act No. 1379 filed against private respondents herein. The dismissed petition charged Simplicio Berdon, an Assistant Staff Civil Engineer assigned to Regional Office No. VII of the Bureau of Public Highways in Cebu City, with having acquired unexplained wealth in violation of Republic Act No. 1379. It alleged that during the period from 1963 to 1969 he and his wife Gaudiosa Mangubat Berdon purchased parcels of land and constructed a house, the purchase prices and costs of which were not commensurate to their incomes, savings or declared assets. Pleaded as defendants in the petition were Berdon, his wife, and Luis Berdon, his father. Petitioner Republic of the Philippines, which valued the unexplained wealth at P124,495.82, thus sought the forfeiture of the properties and the issuance of a writ of attachment. Upon orders of the trial court, the properties enumerated in the petition were attached. During the course of the trial, the following evidence was adduced by the parties: xxx xxx xxx The evidence for the petitioner as testified to by Joselito Magno and Atty. David Macayayong may be summarized as follows: That on the basis of a letter complaint sent to the Office of the President by a certain George Valde against Simplicio Berdon, the Complaint and Investigation Office, Malacaang, Manila, sent Joselito Magno and Atty. David Macayayong to conduct an actual field investigation on Mr. Simplicio Berdon. Both investigators went to Cebu City, Danao City and the Northern Towns of Bogo and Borbon, Cebu and secured pertinent documents relative to the case such as the service record of the respondent Simplicio Berdon (Exh. 'B') copies of sworn statement of financial condition, assets, income and liabilities of respondent-spouses Berdon, Exhibit "C" for the year 1962; Exhibit "D" for 1963; Exhibit "E" for 1965; Exhibit "F" for 1967 and Exhibit "G" for 1969. Copies of documents regarding the acquisition of respondent Simplicio Berdon were also obtained, to wit: Exhibit 'H' which is a Deed of Absolute Sale of a parcel of land in favor of respondents-spouses Berdon for a consideration of P3,700.00 executed on July 19,1967; Exh. "I" is a contract to sell by installments of a parcel of land of the Singson Village Subdivision, Cebu City, in favor of respondent Simplicio Berdon for a monthly installment of P107.00, more or less, and with a total consideration of P9,000.00; Exh. "J" is a Deed of Absolute Sale of a parcel of agricultural land dated September 6,1967 also in favor of respondent Simplicio Berdon for a consideration of P3,000.00; Exh. "K" is another Deed of Absolute Sale of a parcel of land situated in Cebu City, containing an area of 623 square meters in favor of respondent Simplicio Berdon for the sum of P15,825.00 executed on November 9, 1967; Exh. "L" is a Deed of Sale With Right to Repurchase within a period of 5 years of a parcel of agricultural land situated at Managasa, Borbon, Cebu executed by Fidel Sepulveda in favor of respondent Simplicio Berdon on November 27, 1967 for a consideration of P5,000.00; Exh. 'M' is another Deed of Sale with Right to Repurchase within the period of three (3) years of a parcel of agricultural land also situated at Managasa, Borbon, Cebu, executed by Felicidad S. Guiachon on December 7, 1967 in favor of respondent Simplicio Berdon for a consideration of P3,000.00; Exh. "N-1" is a Deed of Absolute Sale of a parcel of agricultural land situated in Managasa, Borbon, Cebu, executed by Elias M. Dosdos on December 17, 1967 in favor

of respondent Simplicio Berdon for the sum of P25,000.00; Exh. "Y" is a Deed of Sale with Right to Repurchase executed by Felicidad S. Guiachon on July 4, 1968 in favor of respondent Simplicio Berdon for a sum of P5,000.00; Exh. "P" is another Deed of Sale with Right to Repurchase executed by Fidel Sepulveda on November 8, 1968 in favor of Simplicio Berdon for the sum of P10,000. 00 and Exh. "O" refer to a Deed of Absolute Sale dated November 18, 1969 of a parcel of land situated at Bogo, Cebu in favor of respondent Simplicio Berdon; Exh. "S" refer to a Deed of Extrajudicial partition of a parcel of land acquired by respondent Luis Berdon for a consideration of P1,000.00. This parcel of land is included since the respondent Luis Berdon had no known source of income and this land must have been purchased by the respondent Simplicio Berdon but under the name of respondent Berdon; and Exh. "R" is a Declaration of Real Property, a residential house of strong materials owned by respondent Simplicio Berdon with an assessed value of P34,480.00. An analysis and evaluation of respondent Simplicio Berdon's financial condition, income, assets and liabilities reflected in Exhs. "C", "D", "E", "F" and "G" from 1962 to 1969 show an unexplained total income of P105,495.92. Not included in the computation is the sum of P1,000.00 which was the consideration of the parcel of land purchased in the name of respondent Luis Berdon so that the total unexplained income of respondent Simplicio Berdon for the years 1962 to 1969 is P109,495.92. The total amounts paid by respondents spouses in the several real properties purchased and/or constructed by them amounts to P101,305.00 as shown in Exhs. "H", "I" , "J" , "K", "L", "M", "N-1", "O" and "P", "Q" and "R" plus the aforementioned sum of P1,000.00 purchased for a parcel of land in the name of Luis Berdon (Exh. 'S'). Since the money used to purchase those real properties came from an unexplained income these properties should be forfeited in favor of the state. The evidence for the respondents as testified to by respondents spouses Simplicio Berdon and Gaudiosa Mangubat Berdon is as follows: Respondent Mrs. Berdon is employed as a pharmacist at the Danao General Hospital (Exh. '4'). Her parents who have several landholdings in the municipality of Borbon, Cebu (Exh. '9') extended to respondents spouses a loan in the sum of P5,000.00 (Exh. '10-A') to buy the house and lot in Danao City. Aside from this amount respondents spouses were given by Mrs. Berdon's mother the sum of P3,000.00 to repair said house which was already very dilapidated. Respondents deny having owned a moviehouse in Bogo, Cebu. Moreover, Mrs. Romualda Mangubat, respondent Mrs. Berdon's mother, owns the moviehouse. Respondent Simplicio Berdon testified that he started in the government service as construction foreman in the year 1955. Since then he has been in the government service and rose from the ranks when he was promoted to the position of Assistant Staff Civil Engineer in the Ministry of Public Highways, Region 7. Aside from respondents spouses' income as government employees they have also other income, and for which they have paid taxes thereon under Presidential Decree 370 (Exhs. '12' and '12- A') and Presidential Decree 631 (Exhs. '13' & '13-A'). In respondents-spouses' statement of assets and liabilities as of December 31, 1967, the P20,000.00 disbursed as insurance premiums was erroneous. This amount represents the face value of the insurance policy of respondent Simplicio Berdon (Exh.'15'). Insurance premiums should have been only P427.66 semi-annually (Exh. '15-A'). The respondent Simplicio Berdon also denied petitioner's allegation that the purchase price of the parcel of land he bought from a certain Elias Dosdos was P45,000.00. The truth is that he paid only P25,000.00 as shown in Exhs. "16" & "16-A". The residential house of respondents spouses situated in Lahug, Cebu City, actually costs about P25,000.00 as shown in the building permit of said house (Exhs. '17' and '17-A') and respondents spouses were able to obtain a real estate loan of P14,000.00 from the GSIS to finance the construction of said building (Exhs. '18' & '19'). Sometime on November 7, 1967, the respondent Simplicio Berdon obtained a personal loan from former Congressman Ramon Durano in the sum of P100,000.00 under a Memorandum of Agreement (Exhs. '20') which amount he used to purchase the several parcels of agricultural lands in 1967 and 1968. The marriage contract of the respondents spouses marked Exh. "21" showed that Congressman and Mrs. Durano stood as sponsors of the wedding of respondents spouses. Defendants spouses had also obtained a loan from the Development Bank of the Philippines (Exh. '22') which they used to purchase the lot in Bogo, Cebu containing an area of 359 sq. m. (Exh. '23') mentioned in petitioner's Exh. "O". Respondent Luis Berdon was not presented. However, Exhibit "11" which is a medical certificate issued by the municipal health officer of Bordon, Cebu was presented to show that the general physical condition of the respondent Luis Berdon cannot sustain long distance land travel. Exhs. "5" and "9" were also presented showing that the respondent Luis Berdon is a retired school teacher and a declared owner of several parcels of land situated in Bordon, Cebu, respectively. (pp. 67-76, Record on Appeal). [IAC Decision, pp. 3-7; Rollo, pp. 34-38.] On the basis of the aforesaid evidence, the trial court dismissed the petition, holding that respondents have no unexplained wealth. The Republic appealed the trial court's decision to the Intermediate Appellate Court. The appellate court, finding no reversible error in the decision appealed from, affirmed said decision. Said court found that, on the basis of the evidence presented, "the assets acquired by the respondent-spouses in excess of their income and receipts from their employment in the Government were satisfactorily explained, thus justifying the conclusion of the trial court that respondent-spouses do not have unexplained wealth subject to forfeiture under Republic Act 1379." [IAC Decision, p. 7; Rollo, p. 38.] Hence, the instant recourse by the Republic to this Court through a petition to review the appellate court's decision.

Republic Act No. 1379, entitled "An Act Declaring Forfeiture in Favor of the State of Any Property Found to Have Been Unlawfully Acquired By Any Public Officer or Employee and Providing for the Procedure Thereof," providesinter alia: Sec. 2. Filing of petition. Whenever any public officer or employee has acquired during his incumbency an amount of property which is manifestly out of proportion to his salary as such public officer or employee and to his other lawful income from legitimately acquired property, said property shall be presumed prima facie to have been unlawfully acquired.... xxx xxx xxx Sec. 6. Judgment. If the respondent is unable to show to the satisfaction of the court that he has lawfully acquired the property in question, then the court shall declare such property, forfeited in favor of the State, and by virtue of such judgment the property aforesaid shall become property of the State: Provided, That no judgment shall be released within six months before any general election or within three months before any special election. The Court may, in addition, refer this case to the corresponding Executive Department for administrative or criminal action, or both. xxx xxx xxx Clear from these provisions is that the law creates a presumption against the public officer or employee who acquires property grossly disproportionate to his income, i.e. that the property was unlawfully acquired. However, this presumption is juris tantum. It may be rebutted by the public officer or employee by showing to the satisfaction of the court that his acquisition of the property was lawful. In the instant case, both the trial and the appellate courts had found satisfactory the private respondents' explanation of their acquisition of the properties and consequently held that they do not have any unexplained wealth as contemplated by the law. The Solicitor General contends that the findings of the appellate court are not supported by the evidence and, hence, should not bind the Court. The Court finds the contention unmeritorious, as the evidence indeed obviates a finding of unexplained wealth. The Court has carefully gone over the evidence presented by private respondents, and like the trial court and the Intermediate Appellate Court, finds the acquisition of the subject properties satisfactorily explained. While respondent spouses had acquired properties and constructed a house the costs of which were disproportionate to their combined incomes from their employment in the government it had been proved that such were financed through a donation and loans, to wit: (1) a P3,000.00 donation and a P5,000.00 loan from the parents of Mrs. Berdon who owned several parcels of land and a moviehouse [TSN, October 3,1979, pp. 11-17; Exh. "9"]; (2) a P14,000.00 loan from the Government Service Insurance System [Exhs. "18" and "19"]; (3) a P6,000.00 loan from the Development Bank of the Philippines [TSN, November 21, 1979, pp. 21-22; Exhs. "22" and "23"]; and, (4) a P100,000.00 loan from Congressman Ramon Durano, a wedding sponsor of respondent spouses [TSN, November 20, 1979, pp. 18-19; Exh. "21"], for the purchase of agricultural land to be planted with sugarcane (although only a total amount of approximately P60,000.00 was actually released) [TSN, November 21, 1979, pp. 17-19; Exh. "20"]. The Solicitor General also makes much of the fact that the statements of assets and liabilities filed by private respondent Simplicio Berdon covering the years material to the case did not accurately reflect the donation and the loans granted to private respondent spouses and that Simplicio's testimony in effect contradicts the entries in said statements. It must be emphasized, however, that in determining whether or not there is unexplained wealth within the purview of R.A. No. 1379 the courts are not bound by the statements of assets and liabilities filed by the respondent. ** On the contrary, this statute affords the respondent every opportunity to explain, to the satisfaction of the court, how he had acquired the property in question [Sec. 5, R.A. No. 1379.] In sum, the presumption under See. 2 of R.A. No. 1379 that the subject properties were unlawfully acquired had been successfully rebutted by private respondents through competent evidence. Hence, the Intermediate Appellate Court did not err in affirming the trial court's decision dismissing the Republic's petition. WHEREFORE, no reversible error having been committed by the Intermediate Appellate Court, the instant petition is hereby DENIED and its decision dated March 31, 1986 is AFFIRMED. SO ORDERED. CARMEN vs. HON. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents. LABATAGOS, petitioner,

Guerrero, Carmelo, De Silva, Lagmay & Lazo Law Office and Pedro R. Lazo for petitioner.

PADILLA, J.: This is a petition for review on certiorari of the decision of the Sandiganbayan (Third Division) * in Criminal Case No. 4799, finding the petitioner guilty beyond reasonable doubt as principal of the crime of malversation of public funds defined and penalized under Article 217, par. 4 of the Revised Penal Code. From January 1978 to December 1980, petitioner Carmen Labatagos was the cashier and collecting officer of the Mindanao State University MSU General Santos City. She filed a leave of absence for the months of March, April and May 1978 and did not discharge her duties for the said period. On 1 October 1980, Francisco T. Rivera, under Commission on Audit (COA) General Order No. 8022-117 (Exh. C) was designated leader of a team to conduct the examination of the cash and accounts of the petitioner. When the team conducted the examination, the petitioner did not have any cash in her posssession, so she was asked to produce all her records, books of collection, copies of official receipts and remittance advices and her monthly reports of collections. Based on the official receipts and the record of remittances for the period from January to August 1978, the audit examination disclosed that the petitioner collected the total amount of P113,205.58 (Exhs. A-1 and A-2) and made a total remittance to the Development Bank of the Philippines (DBP), the depository bank of the university, in the amount of P78,868.69, leaving an unremitted amount of P34,336.19. On the basis of similar official receipts and record of remittances, the audit examination further disclosed that for the period from January 1979 to June 6, 1980, the petitioner made a total collection of P327,982.00 (Exhs. B, B-1, and B-1-a) and remitted to the DBP the total amount of P256,606.25 (Exhs. B-2 and B-2-a) incurring a shortage of P71,365.75. The petitioner signed without exception both Reports of Examination (Exhs. A and B) as well as their supporting summaries. Thereafter, Francisco T. Rivera submitted his report on the examination to the Chairman, Commission on Audit, through the Regional Director, COA, Region IX (Exhs. A-4 and B-4). Subsequently, Rivera prepared the letters of demand corresponding to the two (2) audit reports (Exhs. A-3 and B-3) and served them personally on the petitioner who signed both letters. Despite the demand letters, the petitioner did not submit any explanation of her shortages. Hence, on 27 October 1981, the Tanodbayan filed with the Sandiganbayan an information charging petitioner with the crime of Malversation of Public Funds, committed as follows: That between the periods January 1978 to August 17, 1978, and January 1, 1979 to June 6, 1980, in General Santos City, Philippines, the said accused a public officer being then the Cashier and Collecting Officer of the Mindanao State University, General Santos Unit, General Santos City, who, by reason of the duties of her office was charged with the duty of collecting school dues and tuition fees of the students of said school, and of remitting to, or depositing with, the school's depository bank, the Development Bank of the Philippines, General Santos City branch, all money collections by way of school dues and tuition fees she collected as Cashier and Collecting Officer, was responsible and accountable for the funds collected and received by her, by reason of her position as Collecting Officer, did wilfully, unlawfully, feloniously and fraudulently, and with grave abuse of confidence, misappropriate, and embezzle the total sum of ONE HUNDRED FIVE THOUSAND SEVEN HUNDRED ELEVEN AND 94/100 P105,711.94), Philippine Currency, out of her collection of P441,187.58, during the aforesaid period, which sum of P105,711.94 she appropriated and converted to her own personal use and benefit, to the damage and prejudice of the Republic of the Philippines in said amount. 1 During the trial, petitioner in her defense claimed that she signed the audit reports on the understanding that her shortage would amount to only P2,000.00; that she could not be held accountable for the collections for March, April and May 1978 because she was on maternity leave; and that several disbursements in the total amount of P49,417.12 were not credited in her favor by the auditors. She claimed further that she should not be held accountable for the alleged misappropriations between the months of January 1978 and August 1978 in the amount of P34,336.19 because those who appropriated the amounts were her superiors and that the amounts taken were properly receipted but that the receipts were lost. Respondent Sandiganbayan, however, did not give weight nor credence to her defense. Hence, as previously stated, petitioner was found guilty beyond reasonable doubt of the crime of malversation of public funds. The petitioner then filed the instant petition, and alleged the following reasons why the petition should be granted; (1) that respondent court made manifestly mistaken inferences and misapprehended the significance of the evidence which resulted in the erroneous

decision rendered in the case; and (2) that respondent court erred in finding the petitioner guilty of the crime charged when there is ample evidence submitted showing that she did not put the missing funds to her personal use. The petition is devoid of merit. The only issue to be resolved in this case is whether or not the guilt of the petitioner has been proved beyond reasonable doubt. The established facts show that respondent court did not err in convicting petitioner for the crime of malversation. As held by said court: There is no merit in the accused's defense. 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. Exhibit A, the audit report which she signed without exception, shows that she incurred a shortage of P34,336.19 for the period from January to August 1978; while Exhibit A-1, the statement of her collections and deposits for the same period which she certified as correct, indicates the same amount of P34,336.19 as her shortage. 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 ill the latters house with the duplicate copies of the receipts she issued which the accused signed after satisfying herself that the amounts I turned over tallied with the receipts. There is color of truth to Mrs. Guanzon's explanation. All the collections for the months of March and April 1978 are fully accounted for they are itemized in the reports of collection, (Exhs. F and G) and shown to have been duly remitted in the remittance advices for those months. (Exhs. F-1 to F-5; G-1 and G-2). The auditor was correct in refusing to credit the accused with the three (3) different amounts mentioned in her letter of October 22, 1980. (Exh. 5) The first sum, P7,140.20, purporting to be refunds of tuition fees to students granted tuition privilages is hot supported by any official authorization for such refunds by the University authorities. Besides, the supposed list of students who were recipients of the refunds (Exh. 10) is incompetent evidence being a mere xerox copy uncertified as a true copy of an existing original. The second sum, P4,494.80 was purportedly spent for the cost of uniforms of the school and basketball balls. P2,100.00 in all (Exhs. 6 and 6-A), and the balance taken by Alikhan Marohombsar and Auditor Casan, (Exh. 6-B). The third amount, P6,702.12, was supposedly covered by vouchers submitted to the Auditor's office through Rosa Cabiguin. (Exh. 12-K) Again, the auditor did not err in not crediting the aforesaid sums to the accused's accountability. The P2,100.00 cost of uniforms and balls, unsupported by a duly accomplished and approved voucher, was not a valid disbursement. And since the alleged vouchers for P6,792.12 were not presented in evidence nor was any effort exerted to compel their production in court by subpoena duces tecum, the same was properly refused to be deduced from the incurred shortage of the accused. 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. 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. 2 WHEREFORE, there being no reversible error in the questioned decision of respondent court and the issues raised in this petition being essentially factual, the petition for review is DENIED and the appealed decision is AFFIRMED. SO ORDERED. CALINICO B. vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents. Florecita V. Bilbes for petitioner. The Solicitor General for public respondents. ILOGON, petitioner,

CAMPOS, JR., J.: This is a petition for review on certiorari of the Decision * of the Sandiganbayan in Criminal Case No. 9776 entitled "People of the Philippines vs. Calinico B. Ilogon", dated May 14, 1991 finding petitioner guilty of the crime of Malversation of Public Funds as defined and penalized under Article 217 of the Revised Penal Code and sentencing him to the indeterminate penalty of from ten (10) years of prision mayor, as minimum, to fourteen (14) years of reclusion temporal, as maximum, with the accessory penalties of the law; to suffer the penalty of perpetual special disqualification; and to pay a fine in the sum of P118,003.10, an amount equal to the amount malversed, with costs. Petitioner Calinico B. Ilogon was the acting Postmaster of the Bureau of Posts in Cagayan de Oro City from July, 1978 to January, 1986. He likewise performed the task of accepting payments, making collections and effecting disbursement as there was no cashier employed during the period of his incumbency. He was adept at this work because, before his designation as Acting Postmaster he was, as a matter of fact, a duly-appointed cashier. On September 19, 1983, Commission on Audit Auditors Robin S. Aban and Alfonso A. Gala conducted an examination of the cash and accounts of petitioner covering the period from September 8, 1983 to September 13, 1988. The examination showed that the petitioner incurred a shortage in his accounts amounting to P118,871.29 itemized in the following manner: Accountability: Balance cashbook on certified and verified by us P171,999.42 Credits to Accountability: Deduct: Cash, warrants cash allowed 13,012.00 P 53,128.13 Shortage P 118,871.29 1 ========= The amount of shortage was later reduced to P118,003.10. This shortage represents the following: 1. Vales P 8,846.00 2. Cash already reimbursed received by you P 48,028.58 3. vouchers) paid creditors P 5,787.97 Cash and already shortage and/or (paid paid vouchers) and (paid and/or individual (paid the (paid payable as checks, P and treasury 40,116.13 items shown correct September by by 12, your 1983 you

items received items

disallowed reimbursed by disallowed

4. Cash vouchers) amount Regional Office P 31,036.85 5. Cash vouchers) amount non-budgetry certified by the accountant P 19,555.84 6. Actual shortage P 4,747.86

disallowed

by

items expenses

disallowed still

P 118,003.10 2 ========= On November 27, 1984, petitioner was charged with the crime of Malversation of Public Funds as defined and penalized under Article 217 of the Revised Penal Code in an Information 3 which reads as follows: That on or about September 13, 1983 or prior and subsequent thereto, in Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Tribunal, the said accused, a public officer, being the Acting Postmaster of the Bureau of Posts of the said City, and as such accountable for the public funds collected and received by reason of his position, did then and there, wilfully, unlawfully and feloniously, and with grave abuse of confidence misappropriate, misapply and embezzle for his own personal use and benefit from the said funds, the total sum of ONE HUNDRED EIGHTEEN THOUSAND AND THREE PESOS AND TEN CENTAVOS (P118,003.10) Philippine Currency, to the damage and prejudice of the government. CONTRARY TO LAW. Before the Sandiganbayan, herein petitioner put up the following defense: 1. In respect to the shortage of P8,846.00, Item 1 in the auditor's letter of demand, the amount represents vales (cash advances) granted to postal employees of Cagayan de Oro City in payment of salaries or wages which the accused paid out to them, even before the period for which they were supposed to be paid. He received reimbursement checks on the 20th or 25th September, 1983 in payment thereof, but he remitted these payments to the Land Bank of the Philippines only on October 17, 1983, per Official Receipt Number 312164. . . . 2. As regards that category of shortage amounting to P48,028.58, the accused claims that this amount represents the aggregate of the cash advances to salaries of the Regional Director, Postal Inspector, and postal employees of Davao, Iloilo and other places who were assigned in Cagayan de Oro City. The accused did not have these amounts on hand when his cash and account were audited on September 13, 1983, because the reimbursements for the said cash advances were not yet in his possession. If they were, the amounts given were less than the amounts stated in the voucher, consisting, therefore, of partial liquidations. In case of a partial liquidation, he would simply annotate the partial payment in the voucher. He would not enter partial payments in the cash book. 3. Respecting that category of shortage amounting to P5,787.97, the accused explained that this shortage constituted cash advances to postal employees. While reimbursement checks had already been paid to the employees involved by the Regional Office of the Bureau of Posts, these employees had negotiated or encashed their reimbursement checks without turning over the proceeds thereof to the accused Acting Postmaster. The accused claims that the shortage had later been paid through a remittance he made in the Sum of P20,438.60, Exhibit "14", and in the amount of P65,000.00, Exhibit "10" xxx xxx xxx Finally, as regards the cash shortage of P4,747.86, the accused admitted the fact that he did not actually have this amount of cash when, during the audit, he was told to present all his cash on hand. It is his claim that all the while, this amount had in fact been in the possession of his teller. While he forgot to tell the auditors that the cash was actually with the teller, he remitted this amount to the Land Bank on September 19, 1983, as evidenced by Official Receipt No. 31176, Exhibit "11". 4 After trial, the respondent Sandiganbayan found petitioner guilty beyond reasonable doubt of the crime charged. Hence, this appeal. Petitioner would try to evade the application of Article 217 of the Revised Penal Code by arguing that he never misappropriated the amount of P118,003.10 for his own personal use as the bulk of it was given as cash advances to his co-employees. He pleads: . . . the act of petitioner in giving out vales and/or cash advances should not be condemned or be considered as a criminal act but should instead be lauded not only because the same was done purely for humanitarian reasons and that is to alleviate the plight of his co-employees during those hard times when the salaries of lowly government employees were very much below the ordinary level of subsistence and his desire to see to it that the public interest will not be jeopardized, . . ., but also because this has been the undisturbed practice in their office since time immemorial, even before the accused's incumbency . . . . 5 Petitioner's argument fails to persuade Us. In the crime of malversation, all that is necessary for conviction is proof that the accountable officer had received public funds and that he did not have them in his possession when demand therefor was made. There is even no need of direct evidence of personal misappropriation as long as there is a shortage in his account and petitioner cannot satisfactorily explain the same. 6

In this case, petitioner was the official custodian of the missing funds. He himself admitted the shortage of P118,003.10 in his cash and accounts as Acting Postmaster but could not give a satisfactory explanation for the same. he would invoke what he calls "humanitarian reasons" as the justification for the said shortage. But, like the accused Cabello v. Sandiganbayan, 7 petitioner herein knows that his granting of "chits" and "vales" which constituted the bulk of the shortage was a violation of the postal rules and regulations. Such practice, it was held in Cabello, is also prohibited by Memoramdum Circular No. 570, dated June 29, 1968, of the General Auditing Office. This Court went further to state that "giving vales" is proscribed under Presidential Decree No. 1445, otherwise known as the Government Auditing Code of the Philippines, specifically Section 69 thereof, which provides that postmasters are only allowed to use their collections to pay money orders, telegraphic transfers and withdrawals from the proper depository bank whenever their cash advances for the purpose are exhausted." 8 The fact that petitioner did not personally use the missing funds is not a valid defense and will not exculpate him from his criminal liability. And as aptly found by respondent Sandiganbayan, "the fact that (the) immediate superiors of the accused (petitioner herein) have acquiesced to the practice of giving out cash advances for convenience did not legalize the disbursements". The fact also that petitioner fully settled the amount of P188,003.10 later is of no moment. The return of funds malversed is not a defense. It is neither an exempting circumstance nor a ground for extinguishing the accused's criminal liability. At best, it is a mitigating circumstance. 9 In the light of the above finding and under the plain language of the applicable laws, We hold that the evidence was sufficient to sustain the verdict finding the petitioner guilty of the crime charged. The judgment of the Sandiganbayan is hereby AFFIRMED and the petition is DISMISSED. SO ORDERED.