ELEMENTS COMMON TO ALL ACTS MALVERSATION OF PUBLIC FUNDS OR PROPERTY :
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)
It can be committed either with malice or through negligence or imprudence
In determining whether the offender is a public officer, what is controlling is the nature of his office and not the designation
The funds or property must be received in an official capacity. Otherwise, the crime committed is estafa
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
A public officer who has qualified charge of gov’t property without authority to part with its physical possession upon order of an immediate superior, he cannot be held liable under this article
Private individuals can also be held liable for malversation under 2 circumstances: a. when they are in conspiracy with public officers; and
b. when they have charge of national, provincial or municipal funds, revenues or property in any capacity
In malversation through negligence, the negligence of the accountable public officer must be positively and clearly shown to be inexcusable, approximating fraud or malice
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
Returning the embezzled funds is not exempting, it is only mitigating
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
Demand as well as damage to the government are not necessary elements
Malversation (217) Estafa with Abuse of Confidence (315) Funds or property usually public Funds/property are always private
Offender is usually a public officer who is accountable for the public funds/property
Offender is a private individual or even a public officer who is not accountable for public funds/property
Crime is committed by approaching, taking, or misappropriating/consenting, or through abandonment or negligence, permitting any other person to take the public funds/property
Crime is committed by misappropriating, converting, or denying having received money, goods or other personal property
Article 218
ELEMENTS OF FAILURE OF ACCOUNTABLE OFFICER TO RENDER ACCOUNTS :
a. That the offender is a public officer, whether in the service or separated therefrom.
b. That he must be an accountable officer for public funds property.
c. That he is required by law or regulation to render accounts to the commission on audit, or to a provincial auditor.
d. That he fails to do so for a period of two months after such accounts should be rendered.
Note: Demand and misappropriation are not necessary
Article 219
ELEMENTS OF FAILURE OF A RESPONSIBLE PUBLIC OFFICER TO RENDER ACCOUNTS BEFORE LEAVING THE COUNTRY :
a. That the offender is a public officer.
b. That he must be an accountable officer for public funds or property.
c. That he must have unlawfully left (or be on the point of leaving) the Philippines without securing from the Commission on Audit a certificate showing that his accounts have been finally settled.
Note: The act of leaving the Philippines must be unauthorized or not permitted by law
Article 220
ELEMENTS OF ILLEGAL USE OF PUBLIC FUNDS OR PROPERTY (technical malversation):
a. That the offender is a public officer.
b. That there is public fund or property under his administration.
c. That such public fund or property has been appropriated by law or ordinance (without this, it is simple malversation even if applied to other public purpose). d. That he applies the same to a public use other than for which such fund or
property has been appropriated by law or ordinance.
To distinguish this article with Art 217, just remember that in illegal use of public funds or property, the offender does not derive any personal gain, the funds are merely devoted to some other public use
Absence of damage is only a mitigating circumstance
Article 221
ELEMENTS OF FAILURE TO MAKE DELIVERY OF PUBLIC FUNDS OR PROPERTY
a. Offender has gov’t funds or property in his possession b. He is under obligation to either:
1. make payment from such funds
2. to deliver property in his custody or administration when ordered by competent authority
3. He maliciously fails or refuses to do so
Note: Penalty is based on value of funds/property to be delivered
Article 222
PERSONS WHO MAY BE HELD LIABLE UNDER ARTS 217 TO 221
a. Private individual who, in any capacity, have charge of any national, provincial or municipal funds, revenue, or property
b. Administrator or depositary of funds or property that has been attached, seized or deposited by public authority, even if owned by a private individual Sheriffs and receivers fall under the term ―administrator‖
A judicial administrator in charge of settling the estate of the deceased is not covered by the article
IV. INFIDELITY OF PUBLIC OFFICERS