CAPÍTULO 4: CONSTRUCCIÓN DE LA SOLUCIÓN PROPUESTA
4.8 C ONCLUSIONES P ARCIALES
Article 217
MALVERSATION OF PUBLIC FUNDS OR PROPERTY
ELEMENTS COMMON TO ALL ACTS MALVERSATION OF PUBLIC FUNDS OR
a. That the offender be a public officer (or private person if entrusted with public funds or connived with public officers)
b.
That he had the custody or control of funds or property (if not accountable for the funds, theft or qualified theft)c.
That those funds or property were public funds or property (even if private funds if attached, seized, deposited or commingled with public funds)d. That he:
1. Appropriated the funds or property 2. Took or misappropriated them
3.
Consented or, through abandonment or negligence, permitted any other person to take such public funds or property. (it is not necessary that the offender profited thereby.His being remiss in the duty of safekeeping public funds violates the trust reposed)
Concept of Malversation
It consists in the misappropriation or conversion of public funds or property to one’s personal use or knowingly, or through abandonment or negligence allowing other to use or appropriate the same. The offender is made liable because of the nature of his duties to take care of the funds or property entrusted to him with the diligence of a good father of a family. He is accountable by virtue of the nature of his office to account for funds or properties that come to his possession. If he is not accountable for the funds or properties and he misappropriates the same, the crime will not be malversation but estafa under Article 315.
Malversation is otherwise called embezzlement* This crime is predicated on the relationship of the offender to the property or funds involved. The offender must be accountable for the property misappropriated. If the fund or property, though public in character is the responsibility of another officer, malversation is not committed unless there is conspiracy.
* In determining whether the offender is liable for malversation, it is the nature of the duties of the public officer that controls. While the name of the office is important, what is controlling is whether in performing his duties as a public officer, he has to account or is required by the nature of the performance of a duty, to render an account on the money or property that came into his possession.
* It is not necessary that the offender profited because somebody else may have misappropriated the funds in question for as long as the accountable officer was remiss in his duty of safekeeping public funds or property. He is liable for malversation if such funds were lost or otherwise misappropriated by another.
It can be committed either with malice or through negligence or imprudence
* There is no crime of malversation through negligence. The crime is malversation, plain and simple, whether committed through dolo or culpa. There is no crime of malversation under Article 365 – on criminal negligence – because in malversation under Article 217, the same penalty is imposed whether the malversation results from negligence or was the product of deliberate act.
In determining whether the offender is a public officer, what is controlling is the nature of his office and not the designation* The offender, to commit malversation, must be accountable for the funds or property misappropriated by him. If he is not the one accountable but somebody else, the crime committed is theft. It will be qualified theft if there is abuse of confidence.
* Accountable officer does not refer only to cashier, disbursing officers or property custodian. Any public officer having custody of public funds or property for which he is accountable can commit the crime of malversation if he would misappropriate such fund or property or allow others to do so.
The funds or property must be received in an official capacity. Otherwise, the crime committed is estafa* When private property is attached or seized by public authority and the public officer accountable therefor misappropriates the same, malversation is committed also.
Illustration:
If a sheriff levied the property of the defendants and absconded with it, he is not liable of qualified theft but of malversation even though the property belonged to a private person. The seizure of the property or fund impressed it with the character of being part of the public funds it being in custodia legis. For as long as the public officer is the one accountable for the fund or property that was misappropriated, he can be liable for the crime of malversation. Absent such relation, the crime could be theft, simple or qualified.
Estafa Malversation
It is usually committed by a private
individual Committed by accountable public officers
Funds or property of misappropriation are
privately owned. The object is public fund or property.
The offender appropriates personally the
funds or property. Personal appropriation is not indispensable because allowing others to commit the misappropriation is also malversation.
When a public officer has official custody or the duty to collect or receive funds due the government, or the obligation to account for them, his misappropriation of the same constitutes malversation
* Note that the moment any money is commingled with the public fund even if not due the government, it becomes impressed with the characteristic of being part of public funds. Once they are commingled, you do not know anymore which belong to the government and which belong to the private persons. So that a public vault or safe should not be used to hold any fund other that what is due to the government.
In malversation thru negligence, the negligence of the accountable public officer must be positively and clearly shown to be inexcusable, approximating fraud or malice> Under jurisprudence, when the public officer leaves his post without locking his drawer, there is negligence. Thus, he is liable for the loss.
The measure of negligence to be observed is the standard of care commensurate with the occasion When malversation is not committed through negligence, lack of criminal intent or good faith is a defense
The failure of a public officer to have any duly forthcoming public funds or property upon demand, by any authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use. However, if at the very moment when the shortage is discovered, the accountable officer is notified, and he immediately pays the amount from his pocket, the presumption does not arise* An accountable public officer may be convicted even if there is no direct evidence of misappropriation and the only evidence is the shortage in his account which he has not been able to explain satisfactorily. (Palma Gil vs. People)
* If a public officer reports the loss of money before a cash examination is conducted and the cause of the loss as reported has a distinct ring of truth to it, the legal presumption of prima facie evidence of guilt will not apply. In order to support conviction, the prosecution must prove the actual misappropriation of the missing funds.(Salvacion vs. The Honorable Sandiganbayan, G.
R. No. 68233, July 11, 1986)
* To rebut the presumption of guilt prima facie under Article 217, the accused must raise the issue of accuracy, correctness and regularity in the conduct of audit. If asked for a second audit before the filing of the information against him and the same was denied, and during the trial, some disbursement vouchers were introduced which were not considered in the first audit, the
denial of the request for a second audit is fatal to the cause of the prosecution because in the meantime, the evidence introduced does not establish a fact beyond reasonable doubt. Had the re-audit requested by the accused been accorded due course, the remaining balance could have been satisfactorily accounted for. (Mahinay vs. The Sandiganbayan. G. R. No. 61442, May 9, 1989)
Returning the embezzled funds is not exempting, it is only mitigating
* Payment of the amount misappropriated or restitution of property misappropriated does not erase criminal liability but only civil liability.
There is also no malversation when the accountable officer is obliged to go out of his office and borrow the amount corresponding to the shortage and later, the missing amount is found in an unaccustomed place A person whose negligence made possible the commission of malversation by another can be held liable as a principal by indispensable cooperation
* It is not necessary that the accountable public officer should actually misappropriate the fund or property involved. It is enough that he has violated the trust reposed on him in connection with the property.
Demand as well as damage to the government are not necessary elements
* Note that damage on the part of the government is not considered an essential element. It is enough that the proprietary rights of the government over the funds have been disturbed through breach of trust.
* The grant of loans through the vale system is a clear case of an accountable officer consenting to the improper or unauthorized use of public funds by other persons, which is punishable by law. To tolerate such a practice is to give a license to every disbursing officer to conduct a lending operation with the use of public funds. There is no law or regulation allowing accountable officers to extend loans to anyone against the “vales” or chits given in exchange by the borrowers. (Meneses vs. Sandiganbayan)
A private person may also commit malversation under the following situations:
(1) Conspiracy with a public officer in committing malversation;
(2) When he has become an accomplice or accessory to a public officer who commits malversation;
(3) When the private person is made the custodian in whatever capacity of public funds or property, whether belonging to national or local government, and he misappropriates the same;
(4) When he is constituted as the depositary or administrator of funds or property seized or attached by public authority even though said funds or property belong to a private individual.
* Technical malversation is not included in the crime of malversation. In malversation, the offender misappropriates public funds or property for his own personal use, or allows any other person to take such funds or property for the latter’s own personal use. In technical malversation, the public officer applies the public funds or property under his administration to another public use different from that for which the public fund was appropriated by law or ordinance. Recourse: File the proper information.