SECOND DIVISION

[G.R. Nos. 161784-86. April 26, 2005.]

DINAH C. BARRIGA, petitioner, vs. THE HONORABLE SANDIGANBAYAN (4TH
DIVISION) and THE PEOPLE OF THE PHILIPPINES, respondents.
DECISION
CALLEJO, SR., J p:
This is a petition for certiorari under Rule 65 of the Rules of Court for the nullification of the
Resolution 1 of the Sandiganbayan in Criminal Case Nos. 27435 to 27437 denying the motion to
quash the Informations filed by one of the accused, Dinah C. Barriga, and the Resolution denying
her motion for reconsideration thereof.
The Antecedents
On April 3, 2003, the Office of the Ombudsman filed a motion with the Sandiganbayan for the
admission of the three Amended Informations appended thereto. The first Amended Information
docketed as Criminal Case No. 27435, charged petitioner Dinah C. Barriga and Virginio E. Villamor,
the Municipal Accountant and the Municipal Mayor, respectively, of Carmen, Cebu, with malversation
of funds. The accusatory portion reads:
That in or about January 1996 or sometime prior or subsequent
thereto, in the Municipality of Carmen, Province of Cebu, Philippines and within the
jurisdiction of this Honorable Court, above-named accused VIRGINIO E. VILLAMOR
and DINAH C. BARRIGA, both public officers, being then the Municipal Mayor and
Municipal Accountant, respectively, of the Municipality of Carmen, Cebu, and as
such, had in their possession and custody public funds amounting to TWENTY-
THREE THOUSAND FORTY-SEVEN AND 20/100 PESOS (P23,047.20), Philippine
Currency, 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. jurcd2005
CONTRARY TO LAW. 2

The inculpatory portion of the second Amended Information, docketed as Criminal Case No.
27436, charging the said accused with illegal use of public funds, reads:
That in or about the month of November 1995, or sometime prior or
subsequent thereto, in the Municipality of Carmen, Province of Cebu, Philippines,
and within the jurisdiction of the Honorable Court, above-named accused VIRGINIO
E. VILLAMOR and DINAH C. BARRIGA, both public officers, being then the
Municipal Mayor and Municipal Accountant, respectively, of the Municipality of
Carmen, Cebu, and as such, had in their possession and control public funds in the
amount of ONE THOUSAND THREE HUNDRED FIVE PESOS (P1,305.00)
Philippine Currency, representing a portion of the Central Visayas Water and
Sanitation Project Trust Fund (CVWSP Fund) intended and appropriated for the
projects classified under Level I and III particularly the construction of Deep Well and
Spring Box for Level I projects and construction of water works system for Level III
projects of specified barangay beneficiaries/recipients, and for which fund
accused 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
disburse and use said amount of P1,305.00 for the Spring Box of Barangay Natimao-
an, Carmen, Cebu, a barangay which was not included as a recipient of CVWSP
Trust Fund, thus, accused used said public fund to a public purpose different from
which it was intended or appropriated, to the damage and prejudice of the
government, particularly the barangays which were CVWSP Trust Fund
beneficiaries.
CONTRARY TO LAW. 3
The accusatory portion of the third Amended Information, docketed as Criminal Case No.
27437, charged the same accused with illegal use of public funds, as follows:
That in or about the month of January 1997, or sometime prior or subsequent
thereto, in the Municipality of Carmen, Province of Cebu, Philippines, and within the
jurisdiction of this Honorable Court, above-named accused Virginio E.
Villamor and Dinah C. Barriga, both public officers, being then the Municipal
Mayor and Municipal Accountant, respectively, of the Municipality of Carmen, Cebu,
and as such, had in their possession and control public funds in the amount of TWO
HUNDRED SIXTY-SEVEN THOUSAND FIVE HUNDRED THIRTY-SEVEN and
96/100 (P267,537.96) PESOS, representing a portion of the Central Visayas Water
and Sanitation Project Trust Fund (CVWSP Fund), intended and appropriated for
the projects classified under Level I and Level III, particularly the construction of
Spring Box and Deep Well for Level I projects and construction of water works
system for Level III projects of specified barangay beneficiaries/recipients, and for
which fund accused are accountable by reason for 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 disburse and use said amount of P267,537.96 for the construction and
expansion of Barangay Cantucong Water System, a project falling under Level II of
CVWSP, thus, accused used said public funds to a public purpose different from
which it was intended and appropriated, to the damage and prejudice of the
government, particularly the barangay beneficiaries of Levels I and III of CVWSP.
CONTRARY TO LAW. 4

The Sandiganbayan granted the motion and admitted the Amended Informations. The
petitioner filed a Motion to Quash the said Amended Informations on the ground that under Section
4 of Republic Act No. 8294, the Sandiganbayan has no jurisdiction over the crimes charged. She
averred that the Amended Informations failed to allege and show the intimate relation between the
crimes charged and her official duties as municipal accountant, which are conditions sine qua non for
the graft court to acquire jurisdiction over the said offense. She averred that the prosecution and the
Commission on Audit admitted, and no less than this Court held in Tan v. Sandiganbayan, 5 that a
municipal accountant is not an accountable officer. She alleged that the felonies of malversation and
illegal use of public funds, for which she is charged, are not included in Chapter 11, Section 2, Title
VII, Book II, of the Revised Penal Code; hence, the Sandiganbayan has no jurisdiction over the said
crimes. Moreover, her position as municipal accountant is classified as Salary Grade (SG) 24.

The petitioner also posited that although the Sandiganbayan has jurisdiction over offenses
committed by public officials and employees in relation to their office, the mere allegation in the
Amended Informations that she committed the offenses charged in relation to her office is not
sufficient as the phrase is merely a conclusion of law; controlling are the specific factual allegations
in the Informations that would indicate the close intimacy between the discharge of her official duties
and the commission of the offenses charged. To bolster her stance, she cited the rulings of this Court
in People v. Montejo, 6 Soller v. Sandiganbayan, 7 and Lacson v. Executive Secretary. 8 She
further contended that although the Amended Informations alleged that she conspired with her co-
accused to commit the crimes charged, they failed to allege and show her exact participation in the
conspiracy and how she committed the crimes charged. She also pointed out that the funds subject
of the said Amended Informations were not under her control or administration.

On October 9, 2003, the Sandiganbayan issued a Resolution 9 denying the motion of the
petitioner. The motion for reconsideration thereof was, likewise, denied, with the graft court holding
that the applicable ruling of this Court was Montilla v. Hilario, 10 i.e., that an offense is committed in
relation to public office when there is a direct, not merely accidental, relation between the crime
charged and the office of the accused such that, in a legal sense, the offense would not exist without
the office; in other words, the office must be a constituent element of the crime as defined in the
statute. The graft court further held that the offices of the municipal mayor and the municipal
accountant were constituent elements of the felonies of malversation and illegal use of public funds.
The graft court emphasized that the rulings of this Court in People v. Montejo 11 and Lacson v.
Executive Secretary 12 apply only where the office held by the accused is not a constituent element
of the crimes charged. In such cases, the Information must contain specific factual allegations
showing that the commission of the crimes charged is intimately connected with or related to the
performance of the accused public officer's public functions. In fine, the graft court opined, the basic
rule is that enunciated by this Court in Montilla v. Hilario, and the ruling of this Court in People v.
Montejo is the exception.

The petitioner thus filed the instant petition for certiorari under Rule 65 of the Rules of Court,
seeking to nullify the aforementioned Resolutions of the Sandiganbayan. The petitioner claims that
the graft court committed grave abuse of its discretion amounting to excess or lack of jurisdiction in
issuing the same.

In its comment on the petition, the Office of the Special Prosecutor averred that the remedy
of filing a petition for certiorari, from a denial of a motion to quash amended information, is improper.
It posits that any error committed by the Sandiganbayan in denying the petitioner's motion to quash
is merely an error of judgment and not of jurisdiction. It asserts that as ruled by the Sandiganbayan,
what applies is the ruling of this Court in Montilla v. Hilario and not People v. Montejo. Furthermore,
the crimes of malversation and illegal use of public funds are classified as crimes committed by
public officers in relation to their office, which by their nature fall within the jurisdiction of the
Sandiganbayan. It insists that there is no more need for the Amended Informations to specifically
allege intimacy between the crimes charged and the office of the accused since the said crimes can
only be committed by public officers. It further claims that the petitioner has been charged of
malversation and illegal use of public funds in conspiracy with Municipal Mayor Virginio E. Villamor,
who occupies a position classified as SG 27; and even if the petitioner's position as municipal
accountant is only classified as SG 24, under Section 4 of Rep. Act No. 8249, the Sandiganbayan
still has jurisdiction over the said crimes. The Office of the Special Prosecutor further avers that the
petitioner's claim, that she is not an accountable officer, is a matter of defense.
 The Ruling of the Court
The petition has no merit.
We agree with the ruling of the Sandiganbayan that based on the allegations of the Amended
Informations and Rep. Act No. 8249, it has original jurisdiction over the crimes of malversation and
illegal use of public funds charged in the Amended Informations subject of this petition.
Rep. Act No. 8249, 13 which amended Section 4 of Presidential Decree No. 1606,
provides, inter alia, that the Sandiganbayan has original jurisdiction over crimes and felonies
committed by public officers and employees, at least one of whom belongs to any of the five
categories thereunder enumerated at the time of the commission of such crimes. 14 There are two
classes of public office-related crimes under subparagraph (b) of Section 4 of Rep. Act No. 8249:
first, those crimes or felonies in which the public office is a constituent element as defined by statute
and the relation between the crime and the offense is such that, in a legal sense, the offense
committed cannot exist without the office; 15 second, such offenses or felonies which are intimately
connected with the public office and are perpetrated by the public officer or employee while in the
performance of his official functions, through improper or irregular conduct. 16
The Sandiganbayan has original jurisdiction over criminal cases involving crimes and felonies
under the first classification. Considering that the public office of the accused is by statute a
constituent element of the crime charged, there is no need for the Prosecutor to state in the
Information specific factual allegations of the intimacy between the office and the crime charged, or
that the accused committed the crime in the performance of his duties. However, the Sandiganbayan
likewise has original jurisdiction over criminal cases involving crimes or felonies committed by the
public officers and employees enumerated in Section (a) (1) to (5) under the second classification if
the Information contains specific factual allegations showing the intimate connection between the
offense charged and the public office of the accused, and the discharge of his official duties or
functions — whether improper or irregular. 17 The requirement is not complied with if the Information
merely alleges that the accused committed the crime charged in relation to his office because such
allegation is merely a conclusion of law. 18
Two of the felonies that belong to the first classification are malversation defined and
penalized by Article 217 of the Revised Penal Code, and the illegal use of public funds or property
defined and penalized by Article 220 of the same Code. The public office of the accused is a
constituent element in both felonies.
For the accused to be guilty of malversation, the prosecution must prove the following
essential elements:
(a) The offender is a public officer;
(b) He has the custody or control of funds or property by reason of the duties
of his office;
(c) The funds or property involved are public funds or property for which he
is accountable; and
(d) He has appropriated, taken or misappropriated, or has consented to, or
through abandonment or negligence, permitted the taking by another person of, such
funds or property. 19
For the accused to be guilty of illegal use of public funds or property, the prosecution is
burdened to prove the following elements:
(1) The offenders are accountable officers in both crimes.
(2) The offender in illegal use of public funds or property does not derive any
personal gain or profit; in malversation, the offender in certain cases profits from the
proceeds of the crime.
 (3) In illegal use, the public fund or property is applied to another public use;
in malversation, the public fund or property is applied to the personal use and benefit
of the offender or of another person. 20
We 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.
In United States v. Ponte, 21 the Court, citing Viada, had the occasion to state:
Shall the person who participates or intervenes as co-perpetrator, accomplice
or abettor in the crime of malversation of public funds, committed by a public officer,
have the penalties of this article also imposed upon him? In opposition to the opinion
maintained by some jurists and commentators (among others the learned Pacheco)
we can only answer the question affirmatively, for the same reasons (mutatis
mutandis) we have already advanced in Question I of the commentary on article
314. French jurisprudence has also settled the question in the same way on the
ground that the person guilty of the crime necessarily aids the other culprit in the
acts which constitute the crime. (Vol. 2, 4th edition, p. 653) cIDHSC
The reasoning by which Groizard and Viada support their views as to the
correct interpretation of the provisions of the Penal Code touching malversation of
public funds by a public official, is equally applicable in our opinion, to the provisions
of Act No. 1740 defining and penalizing that crime, and we have heretofore, in the
case of the United States vs. Dowdell (11 Phil. Rep., 4), imposed the penalty
prescribed by this section of the code upon a public official who took part with
another in the malversation of public funds, although it was not alleged, and in fact
clearly appeared, that those funds were not in his hands by virtue of his office, though
it did appear that they were in the hands of his co-principal by virtue of the public
office held by him. 22
The Court has also ruled that one who conspires with the provincial treasurer in committing
six counts of malversation is also a co-principal in committing those offenses, and that a private
person conspiring with an accountable public officer in committing malversation is also guilty of
malversation. 23
We reiterate that the classification of the petitioner's position as SG 24 is of no moment. The
determinative fact is that the position of her co-accused, the municipal mayor, is classified as SG 27,
and under the last paragraph of Section 2 of Rep. Act No. 7975, if the position of one of the principal
accused is classified as SG 27, the Sandiganbayan has original and exclusive jurisdiction over the
offense.
We agree with the petitioner's contention that under Section 474 of the Local Government
Code, she is not obliged to receive public money or property, nor is she obligated to account for the
same; hence, she is not an accountable officer within the context of Article 217 of the Revised Penal
Code. Indeed, under the said article, an accountable public officer is one who has actual control of
public funds or property by reason of the duties of his office. Even then, it cannot thereby be
necessarily concluded that a municipal accountant can never be convicted for malversation under
the Revised Penal Code. The name or relative importance of the office or employment is not the
controlling factor. 24 The nature of the duties of the public officer or employee, the fact that as part
of his duties he received public money for which he is bound to account and failed to account for it,
is the factor which determines whether or not malversation is committed by the accused public officer
or employee. Hence, a mere clerk in the provincial or municipal government may be held guilty of
malversation if he or she is entrusted with public funds and misappropriates the same. ACcISa
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. Costs against
the petitioner.
SO ORDERED.
Puno, Austria-Martinez, Tinga and Chico-Nazario, JJ., concur.

Footnotes
1.Penned by Associate Justice Gregory S. Ong, with Associate Justices Rodolfo G. Palattao
(retired) and Norberto Y. Geraldez, concurring.
2.Rollo, pp. 48-49.
3.Id. at 51-52.
4.Id. at 54-55.
5.G.R. Nos. 88475-96, 5 August 1993, 225 SCRA 156.
6.108 Phil. 613 (1960).
7.G.R. Nos. 144261-62, 9 May 2001, 357 SCRA 677.
8.G.R. No. 128096, 20 January 1999, 301 SCRA 298.
9.Rollo, pp. 33-40.
10.90 Phil. 49 (1951).
11.Supra.
12.Supra.
13.Jurisdiction. — The Sandiganbayan shall exercise exclusive original jurisdiction in all cases
involving:
a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and
Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II
of the Revised Penal Code, where one or more of the accused are officials occupying the
following positions in the government, whether in a permanent, acting or interim capacity,
at the time of the commission of the offense:
(1) Official of the executive branch occupying the positions of regional director and higher,
otherwise classified as Grade "27" and higher, of the Compensation and Position
Classification Act of 1989 (Republic Act No. 6758), specifically including:
(a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and
provincial treasurers, assessors, engineers, and other provincial department heads;

(b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers,
assessors, engineers and other city department heads;
(c) Officials of the diplomatic service occupying the position of consul and higher;
(d) Philippine army and air force colonels, naval captains, and all officers of higher rank;
(e) Officers of the Philippine National Police while occupying the position of provincial director
and those holding the rank of senior superintendent or higher;
(f) City and provincial prosecutors and their assistants, and official and prosecutors in the Office
of the Ombudsman and special prosecutor; and
(g) Presidents, directors or trustees, or managers of government-owned or controlled
corporations, state universities or educational institutions or foundations.
 (2) Members of Congress and officials thereof classified as Grade "2" and up under the
Compensation and Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions of the Constitution;
(4) Chairmen and members of Constitutional Commissions, without prejudice to the provisions
of the Constitution; and
(5) All other national and local officials classified as Grade "27" and higher under the
Compensation and Position Classification Act of 1989.
xxx xxx xxx
b. Other offenses or felonies whether simple or complexed with other crimes committed by the
public officials and employees mentioned in subsection (a) of this section in relation to
their office.
c. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14
and 14-A, issued in 1986.
In cases where none of the accused are occupying positions corresponding to Salary Grade
"27" or higher, as prescribed in the said Republic Act No. 6758, or military and PNP
officers mentioned above, exclusive original jurisdiction thereof shall be vested in the
proper regional trial court, metropolitan trial court, municipal trial court, and municipal
circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided
in Batas Pambansa Blg. 129, as amended.
14.Inding v. Sandiganbayan, G.R. No. 143047, 14 July 2004, 434 SCRA 388.
15.Montilla v. Hilario, supra.
16.People v. Montejo, supra.
17.Ibid.
18.Lacson v. Executive Secretary, supra.
19.Sarigumba v. Sandiganbayan, G.R. No. 154239-41, 16 February 2005.
20.Reyes, The Revised Penal Code, Book II, 13th ed., p. 378.
21.20 Phil. 379 (1911).
22.Id. at 384-385.
23.People v. Sendaydiego, G.R. Nos. L-33252 to L-33254, 20 January 1978; 81 SCRA 120.
24.Quiñon v. People, G.R. No. 136462, 19 September 2002; 389 SCRA 412.
||| (Barriga v. Sandiganbayan, G.R. Nos. 161784-86, [April 26, 2005], 496 PHIL 764-777)
 THIRD DIVISION

[G.R. No. 116033. February 26, 1997.]

ALFREDO L. AZARCON, petitioner, vs. SANDIGANBAYAN, PEOPLE

OF THE PHILIPPINES and JOSE C. BATAUSA, respondents.

Ongkiko Kalaw Manhit Acorda Panga & Velasco Law Offices.

The Solicitor General for respondents.

SYLLABUS

1. REMEDIAL LAW; JURISDICTION; CANNOT BE PRESUMED OR IMPLIED. —

It is hornbook doctrine that in order (to) ascertain whether a court has jurisdiction or not,
the provisions of the law should be inquired into." Furthermore, "the jurisdiction of the
court must appear clearly from the statute law or it will not be held to exist. It cannot be
presumed or implied. And for this purpose in criminal cases, "the jurisdiction of a court is
determined by the law at the time of commencement of the action."
2. ID.; ID.; SANDIGANBAYAN; SEC. 4, P.D. NO. 1606 SPECIFY THE ONLY
INSTANCES WHEN THE SANDIGANBAYAN WILL HAVE JURISDICTION OVER
PRIVATE INDIVIDUAL. — The provisions of Sec. 4 of P.D. No. 1606 unequivocally
specify the only instances when the Sandiganbayan will have jurisdiction over a private
individual, i.e. when the complaint charges the private individual either as a co-principal,
accomplice or accessory of a public officer or employee who has been charged with a
crime within its jurisdiction.
3. CRIMINAL LAW; PUBLIC OFFICER, DEFINED. — Article 203 of the Revised
Penal Code determines who are public officers: "Who are public officers. — For the
purpose of applying the provisions of this and the preceding titles of the book, any person
who, by direct provision of the law, popular election, or appointment by competent
authority, shall take part in the performance of public functions in the Government of the
Philippine Islands, or shall perform in said Government or in any of its branches public
duties as an employee, agent, or subordinate official, of any rank or classes, shall be
deemed to be a public officer." Thus, "(to) be a public officer, one must be — (1) Taking
part in the performance of public functions in the government, or Performing in said
Government or any of its branches public duties as an employee, agent, or subordinate
official, of any rank or class; and (2) That his authority to take part in the performance of
public functions or to perform public duties must be — a. by direct provision of the law,
or b. by popular election, or c. by appointment by competent authority."
 4. CONSTITUTIONAL LAW; DELEGATED POWERS; ADMINISTRATIVE
AGENCIES MAY EXERCISE ONLY THOSE PROVIDED BY ITS ENABLING ACT. — It
is axiomatic in our constitutional framework, which mandates a limited government, that
its branches and administrative agencies exercise only that power delegated to them as
"defined either in the Constitution or in legislation or in both." Thus, although the
"appointing power is the exclusive prerogative of the President, . . ." the quantum of
powers possessed by an administrative agency forming part of the executive branch will
still be limited to that "conferred expressly or by necessary or fair implication" in its
enabling act. Hence, "(a)n administrative officer, it has been held, has only such powers
as are expressly granted to him and those necessarily implied in the exercise thereof."
Corollarily, implied powers "are those which are necessarily included in, and are therefore
of lesser degree than the power granted. It cannot extend to other matters not embraced
therein, nor are not incidental thereto." For to so extend the statutory grant of power
"would be an encroachment on powers expressly lodged in Congress by our
Constitution."
5. ID.; ID.; ID.; NATIONAL INTERNAL REVENUE CODE; DOES NOT STRETCH
THE BIR'S POWER AUTHORIZING A PRIVATE INDIVIDUAL TO ACT AS A
DEPOSITARY AS TO INCLUDE THE POWER TO APPOINT HIM AS PUBLIC
OFFICER. — It is true that Sec. 206 of the NIRC, as pointed out by the prosecution,
authorizes the BIR to effect a constructive distraint by requiring "any person" to preserve
a distrained property, thus: ". . . The constructive distraint of personal property shall be
effected by requiring the taxpayer or any person having possession or control of such
property to sign a receipt covering the property distrained and obligate himself to
preserve the same intact and unaltered and not to dispose of the same in any manner
whatever without the express authority of the Commissioner. . . However, we find no
provision in the NIRC constituting such person a public officer by reason of such
requirement. The BIR's power authorizing a private individual to act as a DEPOSITARY
cannot be stretched to include the power to appoint him as a public officer.
6. STATUTORY CONSTRUCTION; LEGISLATIVE INTENT; DETERMINED
PRINCIPALLY FROM THE LANGUAGE OF THE STATUTE; APPLICATION IN CASE
AT BAR. — Legislative intent is determined principally from the language of a statute.
Where the language of a statute is clear and unambiguous, the law is applied according
to its express terms, and interpretation would be resorted to only where a literal
interpretation would be either impossible or absurd or would lead to an injustice. This is
particularly observed in the interpretation of penal statutes which "must be construed with
such strictness as to carefully safeguard the rights of the defendant . . ." The language
of the foregoing provision is clear. A private individual who has in his charge any of the
public funds or property enumerated therein and commits any of the acts defined in any
of the provisions of Chapter Four, Title Seven of the RPC, should likewise be penalized
with the same penalty meted to erring public officers. Nowhere in this provision is it
expressed or implied that a private individual falling under said Article 222 is to be
deemed a public officer.
 DECISION

PANGANIBAN, J : p

Does the Sandiganbayan have jurisdiction over a private individual who is charged
with malversation of public funds as a principal after the said individual had been
designated by the Bureau of Internal Revenue as a custodian of distrained property? Did
such accused become a public officer and therefore subject to the graft court's jurisdiction
as a consequence of such designation by the BIR?
These are the main questions in the instant petition for review of Respondent
Sandiganbayan's Decision 1in Criminal Case No. 14260 promulgated on March 8, 1994,
convicting petitioner of malversation of public funds and property, and Resolution 2 dated
June 20, 1994, denying his motion for new trial or reconsideration thereof.
The Facts
Petitioner Alfredo Azarcon owned and operated an earth-moving business,
hauling "dirt and ore." 3 His services were contracted by the Paper Industries Corporation
of the Philippines (PICOP) at its concession in Mangagoy, Surigao del Sur. Occasionally,
he engaged the services of sub-contractors like Jaime Ancla whose trucks were left at
the former's premises. 4 From this set of circumstances arose the present controversy.
". . . It appears that on May 25, 1983, a Warrant of Distraint of Personal
Property was issued by the Main office of the Bureau of Internal Revenue (BIR)
addressed to the Regional Director (Jose Batausa) or his authorized
representative of Revenue Region 10, Butuan City commanding the latter to
distraint the goods, chattels or effects and other personal property of Jaime
Ancla, a sub-contractor of accused Azarcon and, a delinquent taxpayer. The
Warrant of Garnishment was issued to accused Alfredo Azarcon ordering him to
transfer, surrender, transmit and/or remit to BIR the property in his possession
owned by taxpayer Ancla. The Warrant of Garnishment was received by
accused Azarcon on June 17, 1985." 5
Petitioner Azarcon, in signing the "Receipt for Goods, Articles, and Things Seized
Under Authority of the National Internal Revenue," assumed the undertakings specified
in the receipt the contents of which are reproduced as follows:
"(I), the undersigned, hereby acknowledge to have received from Amadeo
V. San Diego, an Internal Revenue Officer, Bureau of Internal Revenue of the
Philippines, the following described goods, articles, and things:
Kind of property — Isuzu dump truck
Motor number — E120-229598
Chassis No. — SPZU50-1772440
Number of CXL — 6
Color — Blue
 Owned By — Mr. Jaime Ancla
the same having been this day seized and left in (my) possession pending
investigation by the Commissioner of Internal Revenue or his duly authorized
representative. (I) further promise that (I) will faithfully keep, preserve, and, to the
best of (my) ability, protect said goods, articles, and things seized from
defacement, demarcation, leakage, loss, or destruction in any manner; that (I)
will neither alter nor remove, nor permit others to alter or remove or dispose of
the same in any manner without the express authority of the Commissioner of
Internal Revenue; and that (I) will produce and deliver all of said goods, articles,
and things upon the order of any court of the Philippines, or upon demand of the
Commissioner of Internal Revenue or any authorized officer or agent of the
Bureau of Internal Revenue." 6
Subsequently, Alfredo Azarcon wrote a letter dated November 21, 1985 to the
BIR's Regional Director for Revenue Region 10 B, Butuan City stating that
". . . while I have made representations to retain possession of the property
and signed a receipt of the same, it appears now that Mr. Jaime Ancla intends to
cease his operations with us. This is evidenced by the fact that sometime in
August, 1985 he surreptitiously withdrew his equipment from my custody. . . In
this connection, may I therefore formally inform you that it is my desire to
immediately relinquish whatever responsibilities I have over the above-
mentioned property by virtue of the receipt I have signed. This cancellation shall
take effect immediately. . ." 7
Incidentally, the petitioner reported the taking of the truck to the security manager
of PICOP, Mr. Delfin Panelo, and requested him to prevent this truck from being taken
out of the PICOP concession. By the time the order to bar the truck's exit was given,
however, it was too late. 8

Regional Director Batausa responded in a letter dated May 27, 1986, to wit:
"An analysis of the documents executed by you reveals that while you are
(sic) in possession of the dump truck owned by JAIME ANCLA, you voluntarily
assumed the liabilities of safekeeping and preserving the unit in behalf of the
Bureau of Internal Revenue. This is clearly indicated in the provisions of the
Warrant of Garnishment which you have signed, obliged and committed to
surrender and transfer to this office. Your failure therefore, to observe said
provisions does not relieve you of your responsibility." 9
Thereafter, the Sandiganbayan found that
"On 11 June 1986, Mrs. Marilyn T. Calo, Revenue Document Processor
of Revenue Region 10 B, Butuan City, sent a progress report to the Chief of the
Collection Branch of the surreptitious taking of the dump truck and that Ancla
was renting out the truck to a certain contractor by the name of Oscar Cueva at
PICOP (Paper Industries Corporation of the Philippines, the same company
 which engaged petitioner's earth moving services), Mangagoy, Surigao del Sur.
She also suggested that if the report were true, a warrant of garnishment be
reissued against Mr. Cueva for whatever amount of rental is due from Ancla until
such time as the latter's tax liabilities shall be deemed satisfied. . . However,
instead of doing so, Director Batausa filed a letter-complaint against the (herein
Petitioner) and Ancla on 22 January 1988, or after more than one year had
elapsed from the time of Mrs. Calo's report." 10
Provincial Fiscal Pretextato Montenegro "forwarded the records of the complaint .
. . to the office of the Tanodbayan" on May 18, 1988. He was deputized Tanodbayan
prosecutor and granted authority to conduct preliminary investigation on August 22,
1988, in a letter by Special Prosecutor Raul Gonzales approved by Ombudsman
(Tanodbayan) Conrado Vasquez. 11
Along with his co-accused Jaime Ancla, Petitioner Azarcon was charged before
the Sandiganbayan with the crime of malversation of public funds or property under
Article 217 in relation to Article 222 of the Revised Penal Code (RPC) in the following
Information 12 filed on January 12, 1990, by Special Prosecution Officer Victor Pascual:
"That on or about June 17, 1985, in the Municipality of Bislig, Province of
Surigao del Sur, Philippines, and within the jurisdiction of this Honorable Court,
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 (sic) with Motor No. E120-22958, Chassis No. SPZU 50-1772440,
and number CXL-6 and was authorized to be such under the authority of the
Bureau of Internal Revenue, 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 of EIGHTY THOUSAND EIGHT HUNDRED
THIRTY ONE PESOS and 59/100 (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 willfully, (sic) 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 (sic) 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.
CONTRARY TO LAW."
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. 13 The
Sandiganbayan granted the motion for reinvestigation on May 22, 1991. 14 After the
reinvestigation, Special Prosecution Officer Roger Berbano, Sr., recommended the
"withdrawal of the information" 15 but was "overruled by the Ombudsman." 16
A motion to dismiss was filed by petitioner on March 25, 1992 on the ground that
the Sandiganbayan did not have jurisdiction over the person of the petitioner since he
was not a public officer. 17 on May 18, 1992, the Sandiganbayan denied the motion. 18
When the prosecution finished presenting its evidence, the petitioner then filed a
motion for leave to file demurrer to evidence which was denied on November 16, 1992,
"for being without merit." 19 The petitioner then commenced and finished presenting his
evidence on February 15, 1993.
The Respondent Court's Decision
On March 8, 1994, Respondent Sandiganbayan 20 rendered a Decision, 21 the
dispositive portion of which reads:
"WHEREFORE, the Court finds accused Alfredo Azarcon y Leva GUILTY
beyond reasonable doubt as principal of Malversation of Public Funds defined
and penalized under Article 217 in relation to Article 222 of the Revised Penal
Code and, applying the Indeterminate Sentence Law, and in view of the
mitigating circumstance of voluntary surrender, the Court hereby sentences the
accused to suffer the penalty of imprisonment ranging from TEN (10) YEARS
and ONE (1) DAY of prision mayor in its maximum period to SEVENTEEN (17)
YEARS, FOUR (4) MONTHS and ONE (1) DAY of Reclusion Temporal. To
indemnify the Bureau of Internal Revenue the amount of P80,831.59; to pay a
fine in the same amount without subsidiary imprisonment in case of insolvency;
to suffer special perpetual disqualification; and, to pay the costs.LexLib

Considering that accused Jaime Ancla has not yet been brought within
the jurisdiction of this Court up to this date, let this case be archived as against
him without prejudice to its revival in the event of his arrest or voluntary
submission to the jurisdiction of this Court.
SO ORDERED."
Petitioner, through new counsel, 22 filed a motion for new trial or reconsideration
on March 23, 1994, which was denied by the Sandiganbayan in its Resolution 23 dated
December 2, 1994.
Hence, this petition.
The Issues
The petitioner submits the following reasons for the reversal of the
Sandiganbayan's assailed Decision and Resolution:
"I. The Sandiganbayan does not have jurisdiction over crimes committed
solely by private individuals.
 II. In any event, even assuming arguendo that the appointment of a private
individual as a custodian or a depositary of distrained property is sufficient to
convert such individual into a public officer, the petitioner cannot still be
considered a public officer because:
[A]
There is no provision in the National Internal Revenue Code which
authorizes the Bureau of Internal Revenue to constitute private individuals as
depositaries of distrained properties.
[B]
His appointment as a depositary was not by virtue of a direct provision of
law, or by election or by appointment by a competent authority.
III. No proof was presented during trial to prove that the distrained vehicle
was actually owned by the accused Jaime Ancla; consequently, the
government's right to the subject property has not been established.
IV. The procedure provided for in the National Internal Revenue Code
concerning the disposition of distrained property was not followed by the B.I.R.,
hence the distraint of personal property belonging to Jaime C. Ancla and found
allegedly to be in the possession of the petitioner is therefore invalid.
V. The B.I.R. has only itself to blame for not promptly selling the distrained
property of accused Jaime C. Ancla in order to realize the amount of back taxes
owed by Jaime C. Ancla to the Bureau." 24
In fine, the fundamental issue is whether the Sandiganbayan had jurisdiction over
the subject matter of the controversy. Corollary to this is the question of whether
petitioner can be considered a public officer by reason of his being designated by the
Bureau of Internal Revenue as a depositary of distrained property.
The Court's Ruling
The petition is meritorious.
Jurisdiction of the Sandiganbayan
It is hornbook doctrine that in order "(to) ascertain whether a court has jurisdiction
or not, the provisions of the law should be inquired into." 25 Furthermore, "the jurisdiction
of the court must appear clearly from the statute law or it will not be held to exist. It cannot
be presumed or implied." 26 And for this purpose in criminal cases, "the jurisdiction of a
court is determined by the law at the time of commencement of the action." 27
In this case, the action was instituted with the filing of this information on January
12, 1990; hence, the applicable statutory provisions are those of P.D. No. 1606, as
amended by P.D. No. 1861 on March 23, 1983, but prior to their amendment by R.A. No.
7975 on May 16, 1995. At that time, Section 4 of P.D. No. 1606 provided that:
"SEC. 4. Jurisdiction. — The Sandiganbayan shall exercise:
 (a) Exclusive original jurisdiction in all cases involving:
(1) Violations of Republic Act No. 3019, as amended, otherwise
known as the Anti-Graft and Corrupt Practices Act, Republic Act No.
1379, and Chapter II, Section 2, Title VII of the Revised Penal Code;
(2) Other offenses or felonies committed by public officers and
employees in relation to their office, including those employed in
government-owned or controlled corporations, whether simple or
complexed with other crimes, where the penalty prescribed by law is
higher than; prision correccional or imprisonment for six (6) years, or a
fine of P6,000.00: PROVIDED, HOWEVER, that offenses or felonies
mentioned in this paragraph where the penalty prescribed by law does not
exceed prision correccional or imprisonment for six (6) years or a fine of
P6,000.00 shall be tried by the proper Regional Trial Court, Metropolitan
Trial Court, Municipal Trial Court and Municipal Circuit Trial Court.
xxx xxx xxx
In case private individuals are charged as co-principals, accomplices or
accessories with the public officers or employees, including those employed in
government-owned or controlled corporations, they shall be tried jointly with said
public officers and employees.
xxx xxx xxx
The foregoing provisions unequivocally specify the only instances when the
Sandiganbayan will have jurisdiction over a private individual, i.e. when the complaint
charges the private individual either as a co-principal, accomplice or accessory of a public
officer or employee who has been charged with a crime within its jurisdiction.
Azarcon: A Public Officer or A Private Individual
The Information does not charge petitioner Azarcon of being a co-principal,
accomplice or accessory to a public officer committing an offense under the
Sandiganbayan's jurisdiction. Thus, unless petitioner be proven a public officer, the
Sandiganbayan will have no jurisdiction over the crime charged. Article 203 of the RPC
determines who are public officers:
"Who are public officers. — For the purpose of applying the provisions of
this and the preceding titles of the book, any person who, by direct provision of
the law, popular election, popular election or appointment by competent
authority, shall take part in the performance of public functions in the Government
of the Philippine Islands, or shall perform in said Government or in any of its
branches public duties as an employee, agent, or subordinate official, of any rank
or classes, shall be deemed to be a public officer."
Thus,
"(to) be a public officer, one must be —
 (1) Taking part in the performance of public functions in the
government, or Performing in said Government or any of its
branches public duties as anemployee, agent, or subordinate official, of
any rank or class; and
(2) That his authority to take part in the performance of public
functions or to perform public duties must be —
a. by direct provision of the law, or
b. by popular election, or
c. by appointment by competent authority." 28

Granting arguendo that the petitioner, in signing the receipt for the truck
constructively distrained by the BIR, commenced to take part in an activity constituting
public functions, he obviously may not be deemed authorized by popular election. The
next logical query is whether petitioner's designation by the BIR as a custodian of
distrained property qualifies as appointment by direct provision of law, or by competent
authority. 29 We answer in the negative.
The Solicitor General contends that the BIR, in effecting constructive distraint over
the truck allegedly owned by Jaime Ancla, and in requiring Petitioner AlfredoAzarcon who
was in possession thereof to sign a pro forma receipt for it, effectively "designated"
petitioner a depositary and, hence, citing U.S. vs. Rastrollo, 30 a public officer. 31 This is
based on the theory that
"(t)he power to designate a private person who has actual possession of
a distrained property as a depository of distrained property is necessarily implied
in the BIR's power to place the property of a delinquent tax payer (sic) in distraint
as provided for under Sections 206, 207 and 208 (formerly Sections 303, 304
and 305) of the National Internal Revenue Code, (NIRC) . . ." 32
We disagree. The case of U.S. vs. Rastrollo is not applicable to the case before us
simply because the facts therein are not identical, similar or analogous to those obtaining
here. While the cited case involved a judicial deposit of the proceeds of the sale of
attached property in the hands of the debtor, the case at bench dealt with the BIR's
administrative act of effecting constructive distraint over alleged property of taxpayer
Ancla in relation to his back taxes, property which was received by Petitioner Azarcon.
In the cited case, it was clearly within the scope of that court's jurisdiction and judicial
power to constitute the judicial deposit and give "the depositary a character equivalent to
that of a public official." 33 However, in the instant case, while the BIR had authority to
require Petitioner Azarcon to sign a receipt for the distrained truck, the NIRC did not grant
it power to appoint Azarcon a public officer.
It is axiomatic in our constitutional framework, which mandates a limited
government, that its branches and administrative agencies exercise only that power
delegated to them as "defined either in the Constitution or in legislation or in
both." 34 Thus, although the "appointing power is the exclusive prerogative of the
President, . . ." 35 the quantum of powers possessed by an administrative agency forming
part of the executive branch will still be limited to that "conferred expressly or by
necessary or fair implication in its enabling act. Hence, "(a)n administrative officer, it has
been held, has only such powers as are expressly granted to him and those necessarily
implied in the exercise thereof." 36 Corollarily, implied powers "are those which are
necessarily included in, and are therefore of lesser degree than the power granted. It
cannot extend to other matters not embraced therein, nor are not incidental
thereto." 37 For to so extend the statutory grant of power "would be an encroachment on
powers expressly lodged in Congress by our Constitution." 38 It is true that Sec. 206 of
the NIRC, as pointed out by the prosecution, authorizes the BIR to effect a constructive
distraint by requiring "any person to preserve a distrained property, thus:
xxx xxx xxx"
The constructive distraint of personal property shall be effected by
requiring the taxpayer or any person having possession or control of such
property to sign a receipt covering the property distrained and obligate himself to
preserve the same intact and unaltered and not to dispose of the same in any
manner whatever without the express authority of the Commissioner.
xxx xxx xxx
However, we find no provision in the NIRC constituting such person a public officer
by reason of such requirement. The BIR's power authorizing a private individual to act as
a depositary cannot be stretched to include the power to appoint him as a public officer.
The prosecution argues that "Article 222 of the Revised Penal Code . . . defines the
individuals covered by the term 'officers' under Article 217 39 . . ." of the same
Code. 40 And accordingly, since Azarcon became a "depository of the truck seized by the
BIR" he also became a public officer who can be prosecuted under Article 217 . . ." 41
The Court is not persuaded. Article 222 of the RPC reads:
"Officers included in the preceding provisions. — The provisions of this
chapter shall apply to private individuals who, in any capacity whatever, have
charge of any insular, provincial or municipal funds, revenues, or property and to
any administrator or depository of funds or property attached, seized or
deposited by public authority, even if such property belongs to a private
individual."
"Legislative intent is determined principally from the language of a statute. Where
the language of a statute is clear and unambiguous, the law is applied according to its
express terms, and interpretation would be resorted to only where a literal interpretation
would be either impossible or absurd or would lead to an injustice." 42This is particularly
observed in the interpretation of penal statutes which "must be construed with such
strictness as to carefully safeguard the rights of the defendant . . ." 43 The language of
the foregoing provision is clear. A private individual who has in his charge any of the
public funds or property enumerated therein and commits any of the acts defined in any
of the provisions of Chapter Four, Title Seven of the RPC, should likewise be penalized
with the same penalty meted to erring public officers. Nowhere in this provision is it
expressed or implied that a private individual falling under said Article 222 is to be
deemed a public officer.
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. The Sandiganbayan's taking cognizance of this case is of no
moment since "(j)urisdiction cannot be conferred by . . . erroneous belief of the court that
it had jurisdiction." 44 As aptly and correctly stated by the petitioner in his memorandum:
"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." 45
WHEREFORE, the questioned Resolution and Decision of the Sandiganbayan are
hereby SET ASIDE and declared NULL and VOID for lack of jurisdiction. No costs. llcd

SO ORDERED.
Narvasa, C .J ., Davide, Jr., Melo and Francisco, JJ., concur.
(Azarcon v. Sandiganbayan, G.R. No. 116033, [February 26, 1997], 335 PHIL 1202-
|||

1217)
 SECOND DIVISION

[G.R. Nos. 150329-30. September 11, 2007.]

RONALD K. GO (Former Municipal Mayor of the Municipality of

Kapatagan), ROLANDO T. LABITAD, PRAXEDES V.
DUHAYLUNGSOD, LAUREANO O. DELA CRUZ, (All former
Sangguniang Bayan members), JESSICA R. MAMA-CHAN and
ANECITA C. GO (Incumbent Sangguniang Bayan
members),petitioners, vs. THE HONORABLE SANDIGANBAYAN (First
Division); THE HON. ANIANO DESIERTO, in his official capacity as
Ombudsman; and MAYOR BENNY BAGUIO, respondents.

DECISION

TINGA, J :p

This is a Petition for Certiorari and Prohibition 1 with a Prayer for Temporary
Restraining Order and Writ of Preliminary Injunction under Rule 67 of the 1997 Rules
of Civil Procedure filed by petitioners Ronald K. Go (Former Municipal Mayor of the
Municipality of Kapatagan), Rolando T. Labitad, Praxedes V. Duhaylungsod,
Laureano O. Dela Cruz (all former Sangguniang Bayan members), Jessica R. Mama-
chan, and Anecita C. Go (incumbent Sangguniang Bayan members).
In this petition, petitioners assail: (a) the Order 2 dated 15 October 2001 of the
First Division of the Sandiganbayan in Criminal Case Nos. 26285-26286 (the criminal
cases) denying petitioners' motion to quash; (b) the Resolution 3 dated 11 September
2000 of the Graft Investigation Officer II, approved by Ombudsman Aniano A.
Desierto, finding probable cause to indict petitioners for violation of Section 3 (e) and
(g) of Republic Act (R.A.) No. 3019, as amended; and (c) the disapproval 4 dated 17
August 2001 by Ombudsman Desierto of the Memorandum dated 26 January 2001
of the Office of the Special Prosecutor (OSP) recommending the dismissal of the
criminal cases. In addition, petitioners seek to prohibit the Ombudsman from further
prosecuting the criminal cases and the Sandiganbayan from trying the same. 5
The antecedents follow.
On 9 October 2000, the Office of the Ombudsman filed with the Sandiganbayan
two (2) Informations against petitioners, docketed as Criminal Case Nos. 26285-
26286, entitled "People of the Philippines v. Ronald K. Go, et al." for violation of
Section 3 (e) and (g) of R.A. No. 3019, as amended. Both criminal cases were raffled
to the First Division of the Sandiganbayan. 6 Subsequently, on 13 October 2000, the
Sandiganbayan ordered the arrest of petitioners. 7 IDSaEA

After posting bail, petitioners filed a motion for re-investigation of the criminal
cases. 8 On 21 November 2000, the Sandiganbayan ordered a re-investigation of the
case. 9 Pursuant to this directive, the OSP conducted a reinvestigation and
recommended the dismissal of the criminal cases. 10 Then, in accordance with
standard practice, the Ombudsman instructed the Office of the Chief Legal Counsel
(OCLC) of the Office of the Ombudsman to review the OSP memorandum. In a
Memorandum 11 dated 18 July 2001, the OCLC recommended the disapproval of the
OSP's recommendation. The pertinent portions of the OCLC memorandum read as
follows:HDacIT

However, after perusal of the evidence on record, it is submitted that the

allegations in the Motion have not changed the complexion of the case, such that
contrary to the recommendation of the OSP, prosecution of Criminal Cases Nos.
26285 & 26286 for violation of Section 3 (e) and (g), R.A. [No.] 3019 should
proceed. IAaCST

As previously found by this Office, the terms and conditions of the lease
contract in favor of Noel Lim are grossly and manifestly disadvantageous to the
Municipality of Kapatagan. First, unlike in the contract of lease in favor of Globe
Telecom, no escalation clause was provided in the lease contract with accused
Mayor's son-in-law. Second, Noel Lim only pays a monthly rental of P112.00 for
56 sq. meters while Globe pays a monthly rental of P5,000.00 for 100 sq.
meters. Third, the duration of the contract with Lim is ten (10) years, which is
twice longer than the lease contract of Globe which has a period of five (5)
years. IDcHCS

It is also observed that the award of the lease contract of Noel Lim was
objected to by Sangguniang Bayan member Joselito C. Deloria on the ground
that there was a previous applicant and Noel Lim was the son-in-law of accused
Mayor (Minutes of the SB session dated May 20, 1988). The apparent conflict-
of-interest may be gleaned as Noel Kim is related by affinity to the accused
Mayor. 2005jurcd

xxx xxx xxx

As to the third issue raised by the accused, this Office believes that no
prejudicial question exists in the present case. EIDATc

As defined, a prejudicial question is one that arises in a case the resolution

of which is a logical antecedent of the issue involved therein, and the cognizance
of which pertains to another tribunal. It is a question based on a fact distinct and
separate from the crime but so intimately connected with it that it determines the
guilt or innocence of the accused, and for it to suspend the criminal action, it must
appear not only that said case involves facts intimately related to those upon
which the criminal prosecution would be based but also that in the resolution of
the issue or issues raised in the civil case, the guilt or innocence of the accused
 would necessarily be determined (Alfredo Ching v. Hon. Court of Appeals, G.R.
110844, April 27, 2000).
In the instant case, the criminal liability of the accused for violation of
Section 3, paragraphs (e) and (g) of R.A. [No.] 3019, may still be shown through
the presentation of evidence to the effect that the accused is a public officer; that
he entered into a contract or transaction on behalf of the government; and that
such contract or transaction is grossly and manifestly disadvantageous to the
government. SaHTCE

The act treated in the Anti-Graft and Corrupt Practices Act partakes of the
nature of a malum prohibitum: it is the commission of that act as defined by law,
not the character or effect thereof, that determines whether or not the provision
has been violated. This construction would be in consonance with the announced
purpose for which R.A. [No]. 3019 was enacted, which is the repression of certain
acts of public officers constituting graft or corrupt practices or which may lead
thereto (Section 1, R.A. [No.] 3019). DTEScI

Thus, to require for conviction under the Anti-Graft and Corrupt Practices
Act that the validity of the contract or transaction be first proved would be to
enervate, if not defeat, the intention of the Act. For what would prevent the
officials from entering into those kinds of transactions against which R.A. [No.]
3019 is directed, and then deliberately omit the observance of certain formalities
just to provide a convenient leeway to avoid the clutches of the law in the event
of discovery and consequent prosecution (Luciano v. Estrella, 34 SCRA 769).
WHEREFORE, . . . it is respectfully recommended that accused's motion
for reinvestigation/reconsideration be DENIED, and the accused be accordingly
prosecuted. 12
On 17 August 2001, the Ombudsman approved the foregoing OCLC
memorandum and, accordingly, disapproved the recommendation of the OSP. 13
On 5 October 2001, petitioners filed a Motion to Quash 14 dated 2 October 2001
before the Sandiganbayan, principally arguing that there is neither probable cause
nor prima facie case to warrant and sustain the indictment and/or prosecution of the
accused in the criminal cases. TaDSCA

In an Order 15 dated 15 October 2001, the Sandiganbayan denied the motion

to quash in this wise:
The Motion to Quash filed by accused Ronald K. Go for reasons therein
stated, namely[,] to obtain a determination of probable cause in the exercise of
the very functions of this Court, is denied for lack of merit. While the accused
premises his motion on the conflict of views between the Ombudsman and the
prosecution at the preliminary investigation, the fact is that the Ombudsman's
conclusion is what controls the filing of the Information and the Court itself had
already found probable cause. All the matters of fact earlier raised by the
accused before this Court and at review by the prosecution are matters of
evidence proper for presentation at trial. 16
 Petitioners did not move for a reconsideration of the order and instead filed the
instant petition. In this petition, petitioners impute grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of: (1) the Sandiganbayan, when it allegedly
refused to independently assess the Ombudsman's disapproval of the OSP
recommendation; and (2) the Ombudsman, (a) when he disregarded the OSP
recommendation for the dismissal of the criminal cases; (b) when he excluded the
OSP's statement that no unwarranted benefit, advantage or preference had been
given to petitioner Go's son-in-law, Noel Lim; and (c) when he overlooked the
presence of a prejudicial question and ignored the political undertones manifested by
private respondents' filing of similarly baseless complaints. 17
In his Comment 18 dated 1 June 2002, the Ombudsman, through the OSP,
asserts that the Sandiganbayan in its assailed order declared in no uncertain terms
that it found probable cause against petitioners. He also avers that his decision to
proceed with the criminal cases, which the Sandiganbayan sustained, was not
arbitrary as it was based on the OCLC recommendation, which detail the instant
petition conveniently failed to mention. And even if there was no such
recommendation from the OCLC, the Ombudsman states that he cannot be accused
of acting with grave abuse of discretion as the OSP is merely a subordinate office of
the Office of the Ombudsman, with the latter having the powers of supervision and
control over the former. Moreover, the Ombudsman insists that there is evidence to
show that the lease contract with Noel Lim was grossly disadvantageous to the
Municipality of Kapatagan. Finally, on the issue of existence of a prejudicial question,
the Ombudsman asseverates that petitioners failed to show that the civil case for
annulment of Resolution No. 98-02-055, 19 which authorized petitioner Go to enter
into a contract of lease 20 with his son-in-law Noel Lim, involved an issue similar to or
intimately related to the issue raised in the criminal cases. 21 acAIES

In a Resolution 22 dated 21 April 2003, the Court required both parties to file
their respective memoranda. The Ombudsman submitted his Memorandum dated 28
May 2003 23 while petitioners complied likewise with their Memorandum dated 17
June 2003. 24
On 14 January 2004, the Sandiganbayan promulgated a resolution granting the
demurrer of evidence filed by petitioners. Accordingly, it dismissed the criminal cases
against petitioners. 25 The Sandiganbayan ruled in part as follows:
This Court finds that the evidence of the prosecution for violation of
Section 3(e) of R[.]A[.] [No.] 3019 is not sufficient to overcome the presumption
of innocence in favor of herein accused. SHAcID

xxx xxx xxx

It bears to stress that the information for violation of Section 3(e) of R[.]A[.]
[No.] 3019 filed by the prosecution against herein accused even failed to allege
an essential element thereof, i.e., that the unwarranted benefits allegedly given
to Noel Lim resulted in undue injury to the government. Logically, without undue
injury or damage to any party, the lease contract in favor of Noel Lim cannot be
said to be irregularly executed. DcSTaC

xxx xxx xxx

Neither was the prosecution able to prove the fourth and fifth elements of
Section 3(e) of R[.]A[.] [No.] 3019, i.e., that the accused acted with manifest
partiality, evident bad faith or gross inexcusable negligence in giving
unwarranted benefits or advantage to Noel Lim. Again, the instant information
insufficiently made out an accusation of violation of Section 3(e) of R[.]A[.] [No.]
3019 as it did not even allege that the accused were motivated by manifest
partiality, evident bad faith or gross inexcusable negligence in approving the
contract in favor of Noel Lim. In the absence of such imputation, this Court cannot
presume, solely from the accused's act of approving Resolution No. 98-02-055
which granted the lease contract in favor of Noel Lim, that the accused were so
actuated. Evident bad faith connotes a manifest, deliberate intent on the part of
the accused to do wrong or cause damage. Bad faith is not presumed and he
who alleges the same has the onus of proving it. In the instant cases, the
prosecution, relying solely on its presentation of the lease contracts of Noel Lim
and Globe Telecom as proof that the accused gave unwarranted benefits to Noel
Lim, failed to establish with convincing evidence that the accused were actuated
by a dishonest purpose or ill will partaking of a fraud or furtive design or ulterior
purpose to do wrong and cause damage. CDHcaS

xxx xxx xxx

Anent the charge for violation of Section 3(g) of R[.]A[.] [No.] 3019, the
elements thereof are the following: (1) the offender is a public officer; (2) he
entered into a contract or transaction in behalf of the government; and (3) the
contract or transaction is grossly and manifestly disadvantageous to the
government. And, as previously discussed herein, there is no dispute as to the
presence of the first and second elements of Section 3(g) of R[.]A[.] [No.] 3019.
The only issue left to be resolved then is whether the evidence of the prosecution
sufficiently established that the contract or transaction is grossly and manifestly
disadvantageous to the government. cIACaT

xxx xxx xxx

. . . Hence, the accused cannot be blamed for the higher rental rate of
Globe Telecom considering that it was the latter that offered and fixed a higher
rate per square meter for a chosen and specified lot for its particular use, which
is not among the commercial lots priced at P1.50 per square meter, and to the
exclusion of other telecommunication networks. TcaAID

xxx xxx xxx

WHEREFORE, in view of the foregoing, this Court is constrained
to GRANT, as it hereby GRANTS, the Demurrer to Evidence filed by herein
accused as the evidence of the prosecution failed to sufficiently establish the
essential elements of the offenses charged and to overcome the presumption of
 innocence in favor of the accused. Accordingly, the cases against the accused
are hereby DISMISSED. SITCcE

The cash bond posted by accused Laureano O. Dela Cruz is hereby

ordered released to him upon presentation of the original receipt evidencing
payment thereof and subject to the usual accounting and auditing procedures.
As to those accused who posted bail bonds, the same are hereby ordered
cancelled. HSaIET

The hold departure order dated October 13, 2000 against all herein
accused is hereby recalled or revoked and declared functus oficio.
SO ORDERED. 26
Evidently, in view of the foregoing resolution of the Sandiganbayan in the
criminal cases, the present petition has become moot and academic. An issue is said
to have become moot and academic when it ceases to present a justiciable
controversy so that a declaration on the issue would be of no practical use or value. 27
The prayer in the instant petition is for the nullification of: (a) the
Sandiganbayan's Order dated 15 October 2001 denying petitioners' motion to quash;
(b) the Resolution dated 11 September 2000, approved by Ombudsman Aniano A.
Desierto, finding probable cause to prosecute the criminal cases against petitioners;
and (c) the disapproval 28 dated 17 August 2001 by Ombudsman Desierto of the OSP
memorandum recommending the dismissal of the criminal cases. In addition,
petitioners pray that the Sandiganbayan be enjoined from further hearing the criminal
cases. ACDTcE

With the dismissal of the criminal cases by the Sandiganbayan, the Court's
opinion on whether the same should proceed and whether the Sandiganbayan should
try the cases will serve no useful purpose other than as a theoretical exercise. Be it
noted that the Sandiganbayan resolution is immediately final and executory since the
rule against double jeopardy does not brook any appeal from an order dismissing the
case against a criminal defendant. 29
Courts of justice constituted to pass upon substantial rights will not consider
questions where no actual interests are involved. Courts generally decline jurisdiction
over moot cases because there is no substantial relief to which petitioner will be
entitled and which WILL anyway be negated by the dismissal of the petition. This
Court, therefore, ought to abstain from expressing its opinion in the case at bar where
no legal relief is needed or called for. 30
WHEREFORE, the Court DISMISSES the instant petition for having become
moot and academic.
SO ORDERED.
Quisumbing, Carpio, Carpio-Morales and Velasco, Jr., JJ., concur.
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