JUSTO M. ONGKIKO, PETITIONER, VS. THE HON. COURT OF APPEALS AND THE PEOPLE OF THE PHILIPPINES, RESPONDENTS.

Petitioner Justo Ongkiko was charged with the crime of
malversation of public funds or property in an Information filed with the Court
of Instance of Manila.  The Information reads as follows:

“That in or about and during the period comprised between May
29, 1967 to June 13, 1967, inclusive, in the City of Manila, Philippines, the
said accused did then and there wilfully, unlawfully and feloniously defraud
the Government of the Republic of the Philippines in the following manner, to
wit:  the said accused being then a
public officer by virtue of his appointment as Sales Supervisor of the
Philippine Charity Sweepstakes Office and duly qualified as such and by reason
of the duties of his office is accountable for public funds or property, and as
such received from the Philippine Charity Sweepstakes Office the following sweepstakes
tickets:  410 booklets for May 29, 1967
draw, 187 booklets for June 4, 1967 draw, and 186 booklets for June 13, 1967
draw or in the aggregate amount of P30,537.99, belonging to the government of
the Republic of the Philippines, on
consignment and to be sold on cash basis, under the express obligation on the
part of the said accused to account for and turn over the proceeds of the sale
thereof, if sold, or to return the said tickets if not sold to the Philippine
Charity Sweepstakes Office not later than five days before each draw, but said
accused, far from complying with the aforesaid obligation, despite repeated
demands made upon him to do so, accounted for the sum of P4,163.26 only, and
with intend to defraud, did then and there wilfully, unlawfully and feloniously misapply, misappropriate, and convert the balance of
the said tickets or the value thereof in the sum of P26,374.73 to his own
personal use and benefit, to the damage and prejudice of the
government of the Republic of the Philippines in the aforesaid sum of
P26,374.73, Philippine Currency.” (p. 1, Original Records)

Upon arraignment the
accused pleaded “Not Guilty.” Trial on the merits followed.

The factual findings of
the trial court are not disputed.  They
are:

“On May 22, 1961, accused Justo Ongkiko was initially
appointed as ‘Sweepstakes Salesman’ (Also known as ‘Sweepstakes Sales
Supervisor I’ and classified as a Fieldman) of complainant Philippine Charity
Sweepstakes (Exhibits A and D), and took his oath of office as such on May 25,
1961 (Exhibit C).  Later, on November 21, 1965, he was extended a
promotional appointment to the position of ‘Sales Supervisor 8’ (exhibit
B).  In his capacities aforesaid, upon
proper application, he was duly bonded in accordance with the provisions of the
Administrative Code to insure his fidelity in the discharge of his duties
(Exhibits F, G, H, I and J).

“As sales supervisor aforesaid, accused Ongkiko was entitled
to obtain sweepstakes tickets from complainant on consignment basis to be
disposed to authorized sellers within his assigned territory and accounted for in accordance with duly promulgated
Rules and Regulations of complainant governing its Field Force (Exhibit T),
amongst the pertinent provisions of which are the following:

“‘Sec. 4.  Sales of Tickets.  – Tickets
shall be sold on cash, except in cases where surety bonds duly approved by
Central Office are offered as security for credit purchases.  Under no circumstance shall a credit
arrangement be made between fieldmen and authorized sellers.  Booklets of tickets shall be sold at the
Official price of P31.20 per booklet.’ (Exhibit T-1).

x x x                                                       x
x x                                                    
x x x

“‘Sec. 15.  Accounting of Proceeds of Sales of Tickets.  – Fieldmen
shall turn over the proceeds of their sale of tickets to the Treasurer or Cashier
and render an accounting thereof not later than five (5) days after the
corresponding draw.  If they fail to do
so they shall not be issued tickets anymore regardless of whether they have
credit margins or not, unless they
pay their unliquidated accounts.

“‘Should a fieldman be unable to pay his defaulted accounts
for two consecutive draws he shall nevertheless be entitled to salary, per
diems and transportation expenses for a
period of one month counted from the day after the 5-day deadline for
the second draw.’ (Exhibit T-2 or
13-A).

Later,
Section 15 above-quoted was amended per Resolution No. 485 of complainant’s Board of Directors, passed on October 7, 1963, to read as follows:

“‘Sec. 15.  Payment of Ticket Accounts.  – Fieldmen shall settle their ticket
accounts in full five (5) days after
the corresponding draw or prior thereto and upon failure to do so shall not be
issued tickets anymore regardless of whether they have a credit margin or not,
unless they pay the said defaulted account. 
For tickets not duly accounted for within the said period of five (5)
days fieldmen concerned shall be considered in default and shall be dealt with
in accordance with these rules.’ (Exhibit 1).

The 5-day period above-referred to was,
thereafter, also admittedly extended to 10 days.

“During his incumbency, accused Ongkiko had been the recipient
of periodic memoranda detailing his sales performance during each period and
constantly urging him to intensify his campaign efforts to improve his sales
and to expand his sales outlets thru the recruitment of more agents (Exhibits
2, 2-A to 2-F, 3, 3-A to 3-K, 4, 4-A to
4-O, 6, 9, 9-A to 9-C).  Said accused admits that, by way of improving
his sales performance, he resorted to the practice of turning over tickets to
authorized agents in his sales force on consignment or credit – instead of for
cash as required by the Rules and Regulations above-referred to.

“Admittedly, accused Ongkiko received from complainant on
consignment in his capacity as Sales Supervisor the following tickets, to
wit:  410 booklets for the May 29, 1967
draw (Exhibits L, L-1 to L-3, M, M-1 to M-3, N, N-1 to N-3); 187 booklets
for the June 4, 1967 draw (Exhibits O, O-1 to O-3, P, P-1 to P-3, Q, Q-1 to
Q-3); and 106 booklets for the June 13, 1967 draw (Exhibits R, R-1 to R-3, S, S-1 to S-3), with an
aggregate value of P36,537.99.  All these
were duly reported by accused Ongkiko as sold for cash, as evidenced by the
corresponding cash sales invoices issued by him therefor (Exhibits X, X-1 to
X-9, Y, Y-1 to Y-16, Z, Z-1 to
Z-II), as well as by the Abstracts of Collections and Cash Sales he submitted
thereon (Exhibits X-10, X-10-A, X-10-B, Y-17, Y-17-A, Y-17-B, Z-12, Z-12-A and
Z-12-B).  This and the lapse of the
deadline period for accounting and remittance of the proceeds of said sales,
notwithstanding, accused Ongkiko was able to remit only the amount of P4,163.26
thereon, thereby leaving a balance of P26,374.73 outstanding and unpaid
(Exhibits U and W).  Cash-examined by
Delfin Silangerus, Senior Auditing Examiner of the General Auditing Office
detailed with complainant, on October 4, 1967, accused Ongkiko’s above-stated
accountability was duly confirmed and, upon demand for the production of all
cash, money and paid vouchers and examination of his safe vault and other cash
receptacles, was found to be short in the amount of P26,374.73 – a fact which
said accused duly certified to be in accord with his records and documents
(Exhibits V, V-1 to V-3).  Inasmuch as
the amount aforesaid was not forthcoming upon the demand aforesaid, nor was the same duly liquidated thereafter, the
corresponding administrative charge was lodged against accused Ongkiko and, in
due course, per Resolution No. 673 of complainant’s Board of Directors, dated
November 27, 1968, he was ordered separated from the service for cause
effective as of July 1, 1967, without prejudice to whatever action complainant
would take for the recovery of the amount involved (Exhibit K).” (Rollo,
pp. 66-70)

The
accused was found guilty as charged.  The
dispositive potion of the trial court’s decision reads as follows:

“WHEREFORE, judgment is hereby rendered finding accused Justo
Ongkiko guilty beyond reasonable doubt of malversation, as defined and
penalized in Article 217, paragraph 4, Revised Penal Code, and, in default of
any modifying circumstance in attendance, sentencing him to an indeterminate
penalty ranging from Twelve (12) Years, Five (5) Months and Eleven (11) Days,
as minimum, to Eighteen (18) Years, Eight (8) Months and One (1) day, as
maximum, both of reclusion temporal, and to suffer perpetual
special disqualification, with the accessories provided by law; to pay a fine
of Twenty Six Thousand Three Hundred Seventy Four and 73/100 Pesos
(P26,374.73), without subsidiary imprisonment in case of insolvency in view of
the nature of the principal penalty imposed; to indemnify the offended party,
Philippine Charity Sweepstakes, in the same amount of Twenty Six Thousand Three
Hundred Seventy Four and 73/100 Pesos (P26,374.73); and to pay the costs.”
(Rollo, pp. 88-89)

The decision was affirmed
by the Court of Appeals.  Hence, this
petition.

The petitioner assigns
the following errors allegedly committed by the appellate court.

“FIRST
ASSIGNED ERROR

“THE COURT OF APPEALS ERRED IN HOLDING THAT APPELLANT WAS
CRIMINALLY LIABLE FOR THE VALUE OF THE SWEEPSTAKES TICKETS WHICH HE RECEIVES AS
FIELD SUPERVISOR IN CASE OF FAILURE TO ACCOUNT FOR THE VALUE THEREOF.

“SECOND
ASSIGNED ERROR

“ASSUMING ARGUENDO THAT FAILURE TO ACCOUNT FOR THE SWEEPSTAKES
TICKETS RESULTS IN A CRIMINAL LIABILITY, THE COURT OF APPEALS ERRED IN FINDING
THE APPELLANT GUILTY OF MALVERSATION OF PUBLIC FUNDS EVEN FOR THE VALUE OF THE
SWEEPSTAKES TICKETS WHICH APPELLANT ADMITTEDLY DELIVERED ON CONSIGNMENT TO HIS
OWN AGENTS IN ACCORDANCE WITH PRACTICE, AND FOR THE VALUE OF THE SWEEPSTAKES
TICKETS WHICH WERE LOST IN A VEHICULAR ACCIDENT.” (Appellant’s Brief, pp.
1-2)

Article 217 of the Revised Penal Code provides that “Any
public officer who, by reason of the duties of his office, is accountable for
public funds or property, shall appropriate the same, or shall take or
misappropriate or shall consent, or through abandonment or negligence, shall
permit any other person to take such funds or property, wholly or partially, or
shall otherwise be guilty of the misappropriation or malversation of such funds
or property” is guilty of malversation of public funds or property.

The petitioner admits
that he is a public officer. 
Nevertheless, he denies that by reason of his public office he is
accountable for sweepstakes funds. 
He states that, if at all, his liability is only civil in nature.

The petitioner argues that as regards the sweepstakes funds, his
relationship with the Philippine Charity Sweepstakes Office (PCSO) is one of a
debtor with a creditor.  He cites the provision
of his consignment invoices that: 
“he is held liable if any of the above booklets are lest
under any circumstances”.  (Exhibits O, P, Q, R, S) in relation to Section
15 of the Rules and Regulations Governing the Field Force (PCSO) as amended which
states that:

“Sec. 15.  Accounting
of Proceeds of Sales of Tickets:  –

“Fieldmen shall turn over the proceeds
of their sale of tickets to the Treasurer or Cashier and render an accounting
thereof not later than five (5) days after the corresponding draw.  If they fail to do so they shall not be
issued tickets anymore regardless of whether they have credit margins or not,
unless they pay their unliquidated accounts.

“Should a fieldman be unable to pay his defaulted accounts for two
executive draws he shall nevertheless be entitled to salary, per diems and
transportation expenses for a period of one month from the day after the 5-day
deadline for the second draw.” (Original Exhibits – Documentary Exhibits,
p. 45)

The petitioner capitalizes on the use of the word liable instead of accountable in the invoices and the term turn
over under the above rule to prove his point that he is only civilly
liable for his shortages in the
proceeds of the sweepstakes tickets received from the PCSO.

The name and contents of the consignment invoices by which the
petitioner received the tickets from the PCSO show that he received said
tickets on a consignment basis. 
Consignment in its common meaning is an arrangement whereby the goods
are sent by one to another to be sold and disposed by the latter for and on
account of the former.  (Bouiver’s Law
Dictionary, 3rd Ed., Vol. 1).  The
petitioner does not buy tickets for his
own account.  As consignee, he
merely acts as an agent who has an obligation to remit the proceeds of the
sales or return anything left unsold. 
(Webster’s Third New International Dictionary of the English Language,
Unabridged).

Under Section 15 of the Rules and Regulations of the PCSO, the petition is obligated to turn over the
proceeds of his sale of tickets to the PCSO and render an accounting not later
than five (5) days (later amended to ten (10) days) after the corresponding
draw.  This requirement proves that the
petitioner is a consignee of the
sweepstakes funds and, therefore, an accountable officer.  He turns in his collections and renders an
accounting.

The PCSO rules and regulations must be related to the consignment
invoices issued to the petitioner because the consignment invoices by which the
petitioner received the tickets from the PCSO state that he received the
tickets under the following terms: 
“It is understood that I shall be held liable if any of the above
booklets are lost under any circumstances. 
I likewise bind myself to comply strictly with existing rules and
regulations and turn over to the PHILIPPINE CHARITY SWEEPSTAKES OFFICE, the
proceeds of the sale of these tickets.”

Moreover, Section 5 of the rules and regulations of the PCSO
states:

“Sec. 5.  Fidelity & Surety Bonds.  – All accountable officials and
employees shall be bonded in accordance with the provision of Section 314 of
the Revised Administrative Code.  The
amount of the bonds shall be determined and fixed by the Management in
accordance with the accountability of the officials and employees concerned.

“All bonds (Fidelity & Surety) shall be processed,
approved, and kept by the Central Office, the Branch Office to be duly advised
thereof and the date of their expiration. 
Bonds used in the Central Office can not be used in the Branch Office
and vice-versa.

“The Cashier shall not issue tickets in excess of the bond or
credit margin (as defined in Section 12) of each fieldman or authorized seller
as certified by the bookkeeper otherwise, he shall be held liable for any
consequence arising therefrom.”

The petitioner admits that he was bonded.  The bond and what it stands for are
additional proof that Lim is an accountable officer of the PCSO.

As for the term “turn over“, the
petitioner states that this signifies he was only civilly liable for the value
of the sweepstakes tickets.

This argument is not in the least bit convincing.  Section 15 of the Rules and Regulations must
be read in the context of the consignment invoice.  The fact that under this regulation, as
amended, the petitioner has to settle his ticket “account in full” shows
that he is obligated to turn over whatever amounts he realizes from the sale of
the said tickets.  Sweepstakes funds are
considered public funds within the purview of Article 217 of the Revised Penal
Code.  (See People v. Angco, 103 Phil.
33) His failure to turn over the proceeds of the sale of tickets makes him
criminally liable and not civilly liable as he suggests.

The petitioner’s contention that he was extended a running
account so that all his transactions constitute a series of continuing entries
which must be closed as a condition precedent to establish any criminal
liability deserves scant consideration. 
We agree with the lower court’s findings, adopted by the appellate
court, that:

“Neither is it correct to say that accused Ongkiko’s account
was running or open in such a way that no liability is due from him except that
which would appear after the account or the dealings between the parties are
closed.  All reasonable intendments
deducible from the nature of accused Ongkiko’s position as sales supervisor,
from the provisions of the Rules and Regulations governing complainant’s Field
Force, from the documents covering said accused’s ticket transactions with
complainant, and from the manner in which the accounts of said accused are
kept, tend to the unavoidable conclusion that the accounts were strictly on a
draw-by-draw basis.  And, the mere fact
that instances there may have been when remittances were applied partly to one
draw and partly to another, or that payments have at times been receipted for
as ‘For account only’ or that the accused may have time and again been allowed
to apply to his account his per diems or traveling allowance or even his
agent’s share in prizes won, does not detract from the firm fact that his
liability for account and remittance of proceeds of the sales of tickets
accrues for each individual draw.  In
other words, same such practices may have been asserted to, if at all, merely
for accounting convenience and expediency but do not in any way change the
nature of the accused’s accountability for each and every draw
separately.” (pp. 43-44, Rollo).

With regard to the petitioner’s argument that his liability has
not been determined due to the fact that the action for accounting which he filed
in another court is still pending, suffice it to say that the petitioner has
not given substantial reasons why we should disturb the findings of the lower
courts attesting to his shortage in the amount of P26,374.73.  The record shows that the discrepancies
alleged by the petitioner have been satisfactorily explained by Rosario R.
Yniguez, the Chief of the Credit Accounts Division both in her affidavit
(Exhibit B) and in her testimony.  She
brought to the court the original subsidiary ledger covering the petitioner’s
accounts (Exhibits CC, CC-1, to CC-130).

Another argument posed by the petitioner is the alleged lack of
evidence to show that he misappropriated the sweepstakes tickets, or applied
the proceeds thereof to his personal benefit and gain.  According to him, he simply had uncollected
amounts due from his agents.

This is far from what appears in the records.

The petitioner unconditionally reported the sales of tickets as
made on a cash basis.  Thus, he
specifically issued corresponding “Cash Sales Invoices”, copies of
which were submitted to the PCSO (Exhibits X, X-1 to X-9, Y, Y-1 to Y-16, Z,
Z-1 to Z-11) and for the amounts representing their value, he submitted to the
Office “Abstract of Collections and Cash Sales” (Exhibits X-10, Y-17
and Z-12).  Later, his account was
examined by the auditor and he was found to be short in the amount of P26,374.13.  A demand was then made for him to produce
this amount but he failed to do so. 
Consequently, under Art. 217 of the Revised Penal Code, he is deemed to
have misappropriated the proceeds from the sales of the tickets.  And since the petitioner represented to the
PCSO that he sold the tickets in cash, he is now estopped to claim that his
sales were merely on credit or consignment basis.

The petitioner’s claim that the sale of tickets on credit or on
consignment basis is not prohibited by the rules and regulations of the PCSO is
belied by the very rule he cites.  Section 4 of the Rules specifically
provides that “x x x Under no circumstances shall
a credit arrangement be made between fieldmen
and authorized sellers. 
(Underscoring supplied).

The fact that it is a common practice of the field supervisors to
deliver their tickets to their agents on consignment basis is no
justification.  We agree with the
following findings of the lower court, to wit:

x x x                          x x x                             x
x x

“x  x  x The mere fact that other sales supervisors
may have indeed resorted to the practice cannot legalize the same and neither
can accused Ongkiko invoke said unauthorized practice to ward off liability for
his clear violation of his own trust and express undertaking.  True, the constant urgings of complainants
administrators for the sales supervisors to exert more effort in their sales
campaigns and to expand as such as possible their respective sales forces came
thick and fast throughout accused Ongkiko’s incumbency as sales supervisor Yet,
nowhere in any of the memoranda dispatched for this purpose was it as much as
intimated that the administration sanctioned the sale of tickets to authorized
sellers on credit. On the contrary, every now and then, reminders like the
following –

“‘In passing, however, we wish to remind you to follow, always
and strictly, office rules and regulations particularly punctual settlement of
ticket accounts, prompt submission of sales reports, confinement of sales to
agents within our assigned territory (Exhibit 3-I).’

are given (See also:  Exhibit 4C, 4-O).  So much so
that, if to boost his own sales output and thus maintain a good standing in complainant’s supervisory sales
force, accused Ongkiko resorted to the practice of disposing tickets on credit
or consignment basis, that was his own look-out and he cannot now use his own
violation of the Rules and Regulations to shield himself from liability if, as
it turned out, the practice backfired on him.” (pp. 84-85, Rollo)

As regards the petitioner’s alleged loss of tickets due to a
vehicular accident, we quote with approval the trial court’s findings that:

x x x                                                  x
x x                                                     x
x x

“Neither is the alleged loss
consequent to the accident he figured in of any exonerative effect.  For, not only is accused Ongkiko expressly
liable for loss ‘under any circumstances’ but also, such loss, although
supposedly reported to the Police (Exhibits 14 and 14-A), was never seasonably
brought to the attention of complainant and much less did said accused ever
attempt to ask for relief from responsibility therefor.  His move at this time to invoke this in
further abatement of his liability is apparently only an eleventh-hour afterthought.  (pp. 85-86, Rollo)

In the light of the evidence against the petitioner, we see no
reversible error in the conclusions of the two courts below that the petitioner
is guilty of the crime of malversation. 
All the elements of the said crime: 
1) that the offender is a public officer; 2) that he has custody or
control of funds or property by reason of the duties of his office; 3) that
those funds or property are public funds or property for which he is
accountable; and 4) that he misappropriated, took or consented or through
abandonment or negligence, permitted another to take them (See Reyes, The
Revised Penal Code, Book II, 1981 Rev. Ed., p. 391 and Padilla, Criminal Law,
Vol II, 10th Ed., p. 538) are present.

WHEREFORE, the instant petition is hereby DISMISSED.  The questioned decision of the Court of
Appeals is AFFIRMED.

SO ORDERED.

Fernan, (Chairman), Feliciano, Bidin, and Cortes, JJ., concur.