LUCIANO KIMPO Y NIÑANUEVO, PETITIONER, VS. THE SANDIGANBAYAN AND PEOPLE OF THE PHILIPPINES, RESPONDENTS.

Petitioner Luciano Kimpo y Niñanuevo, a Special Collecting Officer
of the Bureau of Domestic Trade at General Santos City, was found guilty beyond
reasonable doubt by the Sandiganbayan of malversation of public funds. He appealed to this Court.

The case was initiated by Special Prosecution Officer Mothalib C.
Onos who, on 29 March 1989, filed with the Sandiganbayan an information
charging petitioner with having committed the following offense:

“That on or about April 30, 1985 and/or sometime prior thereto, in
General Santos city, and within the jurisdiction of this Honorable Court,
accused Luciano Kimpo, a public officer, being the Special Collecting Officer,
Bureau of Domestic Trade, General Santos City, and as such is an accountable
officer responsible for the funds collected by him by reason of the duties of his
office, did then and there wilfully, unlawfully and feloniously, with grave
abuse of confidence, appropriate, embezzle and convert to his personal use and benefit the sum of Fifteen
Thousand Three Hundred Nine Pesos (P15,309.00), which amount constitutes his
collection, to the damage and prejudice of the Government in the aforesaid
amount.

“Contrary to law.”

When arraigned, petitioner, assisted by
counsel,^[1]
pleaded, “not guilty.”

At the pre-trial inquest conducted by the Sandiganbayan, the
following exhibits were admitted:

“1. Exhibits A and A-1, as well as the fact that
they are faithful reproductions of the originals. In connection therewith, the accused admitted that he was on or
before April 30, 1985, Special Collecting Officer, Bureau of Trade, General
Santos City;

“2. That an audit-examination of the cash and
accounts of the accused was conducted on April 30, 1985; that the corresponding
Report of Examination (Exhibit B), Statement of Accountability for Accountable
Forms without Money Value (Exhibit B-1), and Reconciliation Statement of
Accountability (Exhibit B-­3) were made and signed, and that the signatures
appearing on the dorsal side of Exhibits B and B-1 are those of the accused,
all these admissions being subject to the qualification that the accused is
questioning the validity of the audit examination and the accuracy of the
results thereof on constitutional grounds;

“3. The existence of Exhibits C, E, F, M and
M-1, including the fact that they are faithful copies of the originals, subject
to the same qualification made with respect to Exhibits B, B-1 and B-2;

“4. The existence of
Exhibits D and D-1, including the fact that they are correct copies of the
originals, but not their relevance;

“5. Exhibit H as the Official Cash Book of the
accused and his signatures appearing between the entries therein beginning
August 1, 1984 and up to April 31, 1985, with the qualification that the said
entries were not made by him;

“6. The existence of Exhibits I, I-1 to I­-40,
J, J-1 to J-95, K, K-1 to K-26, and L, L-1 to L-44 (carbon copies of official
receipts) and his signatures thereon, subject to the qualification that the
entries therein were not made by him;

“7. Exhibit N, subject to the qualification that
the data mentioned therein were based on the results of the audit examination,
the validity and accuracy of which are questioned;

“8. Exhibits A¹-1, N²-2, T²-1,
L³– 1, F⁴-2,
A⁵, L⁷, N⁷-1, U⁷–2, B⁸-1, C⁸, D⁸, E⁸,
G⁸, G⁸, H⁸, M⁸-2, Y⁸-2
AND Y⁸-3 (xerox copies of official receipts), including the fact
that they are faithful reproductions of the originals;

“9. Exhibits J⁸ to O⁸, as well as the
signatures appearing on the last page of each exhibit and the fact that they
are true copies of the originals.”

The testimonial evidence consisted of the testimonies of Lydia
Mendoza, State Audit Examiner of the Commission on Audit, for the prosecution,
and of Milda de la Peña, Trade and Industry Analyst of the Department of Trade
and Industry at its South Cotabato Provincial Office, as well as that of
petitioner Kimpo himself, for the defense.

From all the evidence adduced, the Sandiganbayan concluded, thus:

“Accused herein having admitted his public position as alleged
in the information and the existence of a shortage of P15,309.00 upon audit
examination of his
accountabilities, then what remains to be resolved only is whether any criminal
liability is attributable to him by reason of such shortage. As can be deduced from the defense evidence,
testimonial and documentary, accused lays the blame for the shortage on one
Yvette Samaranos, whom he admitted to have been retained by him as his
unofficial clerk/collector in his office and who attended to the receipt of
payments for the registration of business names and issuance of certifications
and official receipts for such payments, including penalties, and fees for
repair shop establishments. While the
certifications and official receipts were pre-signed by him, the collections
thereunder were made by Samaranos, who also entered the amounts collected by
her in accused’s cashbook.

“The amounts collected between the period from July 17, 1984
to April 30, 1985 totalled P100,486.50, from which should be deducted total
remittances of P85,177.50, leaving a balance of P16,221,50. An Inventory of Cash and/or allowed Cash
Items produced P912.50, leaving a shortage of P15,309.00 which was determined
by Auditor Lydia R. Mendoza as the difference between the amounts appearing in
the originals of the Official Receipts/Letter of Confirmation and the duplicate
Official Receipts. In other words, what
were collected and reflected in the duplicate ORs were not the correct amounts
appearing in the original ORs issued to the payees and which were verified and
confirmed later by the payees.

“Auditor Mendoza supported her findings of a shortage and the
reasons for such shortage thru a formal ‘Comparison of
Duplicate Official Receipts of P2.00 per
Report of Collections
with the Confirmation Letter and/or Original
Official Receipts’ for the period from July 17, 1984 to April 30,
1985. Therein, it clearly appeared that
while the amounts to be officially collected should be P110.00 or P112.00, the
amounts reported to have been collected and which were reflected in the
duplicate ORs were only P2.00. The
unreported and unrecorded collections of P108.00 or P110.00 from individual
payees were reflected in the original ORs which were confirmed by said payees
through confirmation letters and which totalled P15,309.00.

“After the cash count made by Auditor Mendoza as a prelude to
her Report of Examination and subsequent verification/confirmation, she sent a
letter of demand to the accused on October 14, 1985, which the accused received
on the same date. Therein, he was
required to produce immediately the balance of P3,418.50, due to the fact that
he had made deposits amounting to P11,890.50, ‘after cash count and confirmed
by us (Please see Scheduled 2).’ On October 17, 1985, accused submitted his
letter-explanation to Auditor Mendoza wherein he laid the blame for the
shortage on his office clerk whom he had already relieved and alleged that he
had not benefited, directly or indirectly, from the missing funds. On October 18, 1985 and November 7, 1985,
accused ‘restituted and deposited with the Bureau of Treasury thru PNB, GSC’
the amounts of P2,933.50 and P485.00, respectively, which, if added to his
previous deposits from June 2, 1985 to August 23, 1985 amounting to P11,890.50,
would total P15,309.50.

“There being no dispute, therefore, as to the existence of the
shortage in the accounts of the accused, as found by Auditor Mendoza as of
April 30, 1985, amounting to P15,309.00 and the fact of accused’s settlement
for such shortage through installments deposited with the PNB, General Santos
City between June 2, 1985 to November 7, 1985, then it behooves the Court to
determine if accused herein had rendered himself liable or not under Article
217 of the Revised Penal Code by reason of such shortage. Such determination must perforce go into the
merits of his claim that the responsibility for such shortage should be laid on
the doorstep of Yvette Samaranos, a private individual, whom he inherited from
his predecessor who had allowed her to work in the office as clerk-collector
and whom he retained for the following reasons: (1) the Office of the Bureau of Domestic Trade at General Santos
City, of which he was the Provincial Trade Development Officer, was a one-man
operation, hence, understaffed; (2) he had to go out to the field to campaign
for increased registration of business names, hold symposiums of consumers’
groups, conduct meetings for retailers and consumers and repair shop
establishments; (3) he occasionally goes out to attend raffles conducted by
private establishments as representative of the Bureau of Domestic Trade; and (4) he had to leave someone in the
office to attend to the general public in the registration and/or renewal of
business names and the issuance of
certifications and official receipts for the collection of the proper fees. For the reason that he was out in the field
for days at times, he pre-signed official receipts in blank, as well as
certifications, which he entrusted to Samaranos who then fills up the said
receipts and certifications and makes the corresponding entries in his
cashbook. As it turned out, however,
Samaranos collected the proper official fees, issued the original receipts with
the proper amounts, filled up the duplicates thereof with reduced amounts, made
the corresponding entries in the cashbook based on the amounts reflected in the
duplicates and made the proper remittances based on the improper entries.

“Accused’s defense cannot be accepted, nor can it absolve him
from criminal liability for the missing public funds which the audit
examination on his accountabilities as of April 30, 1985 had revealed. As Special Disbursing Officer, he was the
primary accountable officer for such funds and the fact, which was not
definitely or conclusively established by his evidence, that another person,
albeit a private individual, was responsible for the misappropriation thereof,
cannot be considered in exculpation or justification of such primary
accountability.

“xxx                                            xxx                                      xxx

“Consequently, accused herein cannot blame anyone else for the
predicament that he found himself in. First of all, he should not have allowed Yvette Samaranos, who did not
possess any appointment, to perform official acts which he was ordained to
do. Secondly, since the collection of
official fees was a sensitive area, he should have refrained from pre-signing
official receipts and certifications. Thirdly, if he were that desirous of rendering conscientious public
service, he should have ensured that the collection of official fees was
properly made, recorded and remitted. Fourthly, his admission that he had to pay the salaries of Samaranos
through honoraria received by him from raffles is fatal to his cause since he
should have realized that, under such circumstance, Samaranos would be subject
to the most severe temptation to fool around with the agency’s collections. Apparently, accused was more interested in
conducting field trips and raffles whereby he would be able to collect per
diems, travelling allowances and honoraria from private firms. To allow public accountable officers to
adopt the practice resorted to by the accused in allowing private individuals
to perform public functions would lead to chaos and anarchy and would render
nugatory all applicable norms of public trust and accountability. His bare and unsupported claim that, after
discovery of the shortage upon audit examination, he took steps to charge
Yvette Samaranos for Estafa Thru Falsification of Public Documents does not, in
any way, erase his criminal liability which could be characterized as
malversation of Public Funds through negligence. In his case, such negligence may be described as gross and
inexcusable, amounting to a definite laxity resulting in the deliberate
non-performance of his duties.”

On the basis of the above findings,
judgment was rendered by the Sandiganbayan convicting petitioner Kimpo and
sentencing him, accordingly:

“WHEREFORE, judgment is hereby rendered finding accused
Luciano Kimpo y Niñanuevo GUILTY beyond reasonable doubt of the offense of
Malversation of Public Funds, as defined and penalized under Article 217,
paragraph 4 of the Revised Penal Code, and favorably appreciating the
mitigating circumstances of voluntary surrender and full restitution, after
applying the Indeterminate Sentence Law, hereby sentences him to suffer an
indeterminate penalty ranging from SEVEN (7) YEARS, FOUR (4) MONTHS and ONE (1)
DAY of prision mayor as the minimum, to ELEVEN
(11) YEARS, SIX (6) MONTHS and TWENTY-ONE (21) DAYS, likewise of prision mayor as the maximum; to further suffer perpetual special
disqualification; to pay a fine of P15,309.00 equal to the amount malversed and
to pay the costs of this action. No
civil liability is awarded in view of the full restitution of the amount
involved.

“SO ORDERED.”

In this appeal, petitioner submitted the following assignment of
errors: That –

“I

“THE RESPONDENT COURT ERRED IN LAW WHEN IT CONSIDERED EXHIBITS
B TO B-3 AGAINST THE ACCUSED OVER ACCUSED’S OBJECTIONS ANCHORED ON ARTICLE III,
SECTIONS 12 & 17 OF THE 1987 CONSTITUTION.

“II

“THE RESPONDENT COURT ERRED IN LAW WHEN IT CONSIDERED — OVER
PETITIONER’S OBJECTIONS — ALLEGED CONFIRMATION LETTERS NOT SIGNED OR NOT
PROPERLY IDENTIFIED, AS EVIDENCE TO PROVE ALLEGED SHORTAGE.

“III

“THE RESPONDENT COURT ERRED IN LAW WHEN IT RULED THAT ACCUSED
IS PRESUMED TO HAVE MALVERSED P15,309.00 BECAUSE HE FAILED TO HAVE THE AMOUNT
FORTHCOMING UPON DEMAND.

“IV

“THE RESPONDENT COURT ERRED IN LAW IN HOLDING ACCUSED LIABLE
FOR MALVERSATION OF PUBLIC FUNDS THROUGH NEGLIGENCE.”

The appeal has no merit.

Petitioner faults the Sandiganbayan for having considered Exhibits
“B” to “B-3,” inclusive, despite what he claims to be an
impairment of his constitutional rights under Article III, Section 12
paragraphs (1) and (3), and Section 17,^[2] of
the 1987 Constitution. We cannot
agree. The questioned exhibits pertain
to the Report of Examination, the Statement of Accountability for Accountable
Forms without Money Value, and a Reconciliation Statement of Accountability,
which are official forms prepared and accomplished in the normal course of
audit regularly conducted by the Commission on Audit. Petitioner, not being at the time under investigation for the
commission of a criminal offense, let alone under custodial investigation,
clearly cannot be said to have been deprived of the constitutional prerogatives
he invokes (Villaroza vs. Sandiganbayan, G.R. No. 79636, 17 December 1987;
People vs. Olivares, 186 SCRA 536).

On the so-called confirmatory letters, respondent court concluded
thus –

“III. The Letters of Confirmation
(Exhibits Z to II, JJ to SS, TT to GGG, HHH to WWW, XXX to ZZZZ, AAAA to JJJJJ,
KKKKK to KKKKKKK to JJJJJJJJ and
JJJJJJJJ) were not the primary evidence presented by the prosecution to prove
the manipulations and irregularities in question but the originals and duplicates
of the Official Receipts (Exhibits L to I-40, J to J-95, K to K-26 and L to
L-44), all of which were admittedly signed by the accused, wherein it could
clearly be seen that payments for P110.00 were reflected as P2.00 only. Thus, the Letters of Confirmation are only
secondary evidence to support and prove the principal facts in issue. Accused had not, REPEAT, had not, denied
that the above-mentioned official receipts, originals and duplicates, are
genuine and correctly reflect the amounts which appear to be listed
therein.”

Hardly can the above findings be validly
challenged. Indeed, considering all the
evidence on record, there is not much that the questioned letters could have
lent to augment the case for the prosecution.

Petitioner has been charged with having violated Article 217 of
the Revised Penal Code, which, in full,
reads:

“ART. 217. Malversation
of public funds or property. — Presumption of malversation. — Any public officer who, by reason of the duties of his office, is
accountable for public funds or property, shall appropriate the same, or shall
take or misappropriate or shall consent, or through abandonment or negligence,
shall permit any other person to take such public funds or property, wholly or
partially, or shall otherwise be guilty the misappropriation or malversation of
such funds or property shall suffer:

“1. The penalty
of prision correccional in its medium and maximum periods, if the amount
involved in the misappropriation or malversation does not exceed two hundred
pesos.

“2. The penalty
of prision mayor in its minimum and medium periods, if the amount
involved is more than two hundred pesos but does not exceed six thousand pesos.

“3. The penalty
of prision mayor in its maximum period to reclusion temporal in
its minimum period, if the amount involved is more than six thousand pesos but
is less than twelve thousand pesos.

“4. The penalty
of reclusion temporal in its medium and maximum periods, if the amount
involved is more than twelve thousand pesos but is less than twenty-two
thousand pesos. If the amount exceeds
the latter, the penalty shall be reclusion temporal in its maximum
period to reclusion perpetua.

“In all cases,
persons guilty of malversation shall also suffer the penalty of perpetual
special disqualification and a fine equal to the amount of the funds malversed
or equal to the total value of the property embezzled.

“The failure of a public officer to have duly forthcoming any
public funds or property with
which he is chargeable, upon demand by any duly authorized officer, shall be prima
facie evidence that he has put such missing funds or property to personal
use.”

The validity and constitutionality of the
presumption of evidence provided in the above Article, which petitioner
questions, has long been settled affirmatively in a number of cases heretofore
decided by this Court;^[3] that
point need not again be belabored.

Even while an information
charges willful malversation, conviction for malversation
through negligence may, nevertheless, be adjudged as the evidence so
yields. Malversation, unlike other
felonies punished under the Revised Penal Code, is consummated, and the same penalty is imposed, regardless of whether the mode of commission is with intent or due to
negligence.^[4]

Petitioner argues that
the restitution made by him of the full amount should exonerate him from
criminal liability. The argument not
only is an inappropriate defense in criminal cases but it also even
at times tightens a finding of guilt. In malversation of public funds, payment, indemnification, or reimbursement
of funds misappropriated, after the commission of the crime, does not
extinguish the criminal liability of the offender which, at most, can merely
affect the accused’s civil liability thereunder^[5] and be considered a mitigating circumstance being
analogous to voluntary surrender.^[6]

WHEREFORE, the petition is DISMISSED, and the appealed
decision of respondent Sandiganbayan is AFFIRMED in toto.

SO ORDERED.

Narvasa, C.J., Cruz,
Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo,
Quiason, Puno, and Kapunan, JJ., concur.

^[1]
Atty. Samuel Occeña

^[2]
Sec. 12. (1) Any person under
investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and independent counsel
preferably of his own choice. If the
person cannot afford the services of counsel, he must be provided with
one. These rights cannot be waived
except in writing and in the presence of counsel.

x x x                    x x x                   x x x.

(3) Any confession or admission
obtained in violation of this or Section 17 hereof shall be inadmissible in
evidence against him.

x x x                    x x x                   x x x.

Sec. 17. No person shall
be compelled to be a witness against himself.

^[3]
Bacasnot vs. Sandiganbayan, 155
SCRA 379; Albores vs. Court of Appeals, 132 SCRA 604; People vs.
Livara, 94 Phil. 771; People vs. Mingoa, 92 Phil. 856.

^[4]
Cabello vs. Sandiganbayan, 197
SCRA 94.

^[5]
Felicilda vs. Grospe, 211 SCRA
285; People vs. Miranda, 2 SCRA 262.

^[6]
El Pueblo de Filipinas vs. Velasquez,
72 Phil. 98.