P RESUMPTION OF M ALVERSATION Acts punished

1. Appropriating public funds or property; 2. Taking or misappropriating the same;

3. Consenting, or through abandonment or negligence, permitting any other person to take such public funds or property; and

4. Being otherwise guilty of the misappropriation or malversation of such funds or property.

Elements common to all acts of malversation under Article 217

1. Offender is a public officer;

2. He had the custody or control of funds or property by reason of the duties of his office;

3. Those funds or property were public funds or property for which he was accountable;

4. He appropriated, took, misappropriated or consented or, through abandonment or negligence, permitted another person to take them.

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.

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. The failure of a public officer to have duly forthcoming any funds or property 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 crime is malversation whether committed deliberately or negligently. This is one crime in the Revised Penal Code where the penalty is the same whether committed with dolo or culpa.

The return of the funds malversed is only a mitigating circumstance, not an exempting circumstance.

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.

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.

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. Illustration:

Municipal treasurer connives with outsiders to make it appear that the office of the treasurer was robbed. He worked overtime and the co-conspirators barged in, hog-tied the treasurer and made it appear that there was a robbery. Crime committed is malversation because the municipal treasurer was an accountable officer.

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.

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. Illustration:

(1) It is a common practice of government cashiers to change the checks of their friends with cash in their custody, sometimes at a discount. The public officer knows that the check is good because the issuer thereof is a man of name. So he changed the same with cash. The check turned out to be good.

With that act of changing the cash of the government with the check of a private person, even though the check is good, malversation is committed. The reason is that a check is cleared only after three days. During that period of three days, the government is being denied the use of the public fund. With more reason if that check bounce because the government suffers.

(2) An accountable public officer, out of laziness, declares that the payment was made to him after he had cleaned his table and locked his safe for the collection of the day. A taxpayer came and he insisted that he pay the amount so that he will not return the next day. So he accepted the payment but is too lazy to open the combination of the public safe. He just pocketed the money. When he came home, the money was still in his pocket. The next day, when he went back to the office, he changed clothes and he claims that he forgot to put the money in the new funds that he would collect the next day. Government auditors came and subjected him to inspection. He was found short of that amount. He claimed that it is in his house -- with that alone, he was charged with malversation and was convicted.

Any excess in the collection of an accountable public officer should not be extracted by him once it is commingled with the public funds.

Illustration:

government by way of taxes or licenses like registration of motor vehicles, the taxpayer does not bother to collect loose change. So the government cashier accumulates the loose change until this amounts to a sizable sum. In order to avoid malversation, the cashier did not separate what is due the government which was left to her by way of loose change. Instead, he gets all of these and keeps it in the public vault/safe. After the payment of the taxes and licenses is through, he gets all the official receipts and takes the sum total of the payment. He then opens the public vault and counts the cash. Whatever will be the excess or the overage, he gets. In this case, malversation is committed.

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.

When does presumption of misappropriation arise? When a demand is made upon an accountable officer and he cannot produce the fund or property involved, there is a prima facie presumption that he had converted the same to his own use. There must be indubitable proof that thing unaccounted for exists. Audit should be made to determine if there was shortage. Audit must be complete and trustworthy. If there is doubt, presumption does not arise.

Presumption arises only if at the time the demand to produce the public funds was made, the accountability of the accused is already determined and liquidated. A demand upon the accused to produce the funds in his possession and a failure on his part to produce the same will not bring about this presumption unless and until the amount of his accountability is already known.

In De Guzman v. People, 119 SCRA 337, it was held that in malversation, all that is necessary to prove is that the defendant received in his possession the public funds and that he could not account for them and that he could not give a reasonable excuse for their disappearance. An accountable public officer may be convicted of malversation even if there is no direct evidence of misappropriation and the only evidence is the shortage in the accounts which he has not been able to explain satisfactorily.

In Quizo v. Sandiganbayan, the accused incurred shortage (P1.74) mainly because the auditor disallowed certain cash advances the accused granted to employees. But on the same date that the audit was made, he partly reimbursed the amount and paid it in full three days later. The Supreme Court considered the circumstances as negative of criminal intent. The cash advances were made in good faith and out of good will to co- employees which was a practice tolerated in the

office. The actual cash shortage was only P1.74 and together with the disallowed advances were fully reimbursed within a reasonable time. There was no negligence, malice, nor intent to defraud.

In Ciamfranca Jr. v. Sandiganbayan, it was held that the return of the funds or property is not a defense and does not extinguish criminal liability.

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.

b. FAILURE TO RENDER ACCOUNTS (218-

221)

i. ARTICLE 218. FAILURE OF