Kimpo V Sandiganbayan
Kimpo V Sandiganbayan
Kimpo V Sandiganbayan
DECISION
VITUG, J :
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The case was initiated by Special Prosecution Ocer Mothalib C. Onos who, on 29
March 1989, led 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 ocer, being the Special Collecting Ocer, Bureau
of Domestic Trade, General Santos City, and as such is an accountable
ocer responsible for the funds collected by him by reason of the duties of
his oce, did then and there wilfully, unlawfully and feloniously, with grave
abuse of condence, appropriate, embezzle and convert to his personal use
and benet 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. prcd
"Contrary to law."
"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 Ocer,
Bureau of Trade, General Santos City;
"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 qualication
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 Ocial 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 qualication 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 ocial receipts) and his signatures
thereon, subject to the qualication that the entries therein were not made
by him;
"7. Exhibit N, subject to the qualication that the data mentioned therein
were based on the results of the audit examination, the validity and accuracy
of which are questioned; LLphil
"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 Y8-2 AND Y8-3 (xerox copies of ocial
receipts), including the fact that they are faithful reproductions 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 Pea,
Trade and Industry Analyst of the Department of Trade and Industry at its South
Cotabato Provincial Oce, as well as that of petitioner Kimpo himself, for the
defense.cdphil
"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
dierence between the amounts appearing in the originals of the Ocial
Receipts/Letter of Conrmation and the duplicate Ocial Receipts. In other
words, what were collected and reected 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 ndings of a shortage and the reasons for
such shortage thru a formal 'Comparison of Duplicate Ocial Receipts of
P2.00 per Report of Collections with the Conrmation Letter and/or Original
Ocial Receipts' for the period from July 17, 1984 to April 30, 1985. Therein,
it clearly appeared that while the amounts to be ocially collected should be
P110.00 or P112.00, the amounts reported to have been collected and
which were reected in the duplicate ORs were only P2.00. The unreported
and unrecorded collections of P108.00 or P110.00 from individual payees
were reected in the original ORs which were conrmed 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 verication/conrmation, 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 conrmed 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 oce
clerk whom he had already relieved and alleged that he had not beneted,
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 prcd
"SO ORDERED."
"I
"II
"III
"IV
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 ocial
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 oense, 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). LexLib
Hardly can the above ndings 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:
"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.
"In all cases, persons guilty of malversation shall also suer the penalty of
perpetual special disqualication and a ne equal to the amount of the funds
malversed or equal to the total value of the property embezzled.
"The failure of a public ocer to have duly forthcoming any public funds or
property with which he is chargeable, upon demand by any duly authorized
ocer, shall be prima facie evidence that he has put such missing funds or
property to personal use."
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 nding of guilt. In
malversation of public funds, payment, indemnication, or reimbursement of funds
misappropriated, after the commission of the crime, does not extinguish the
criminal liability of the oender which, at most, can merely aect the accused's civil
liability thereunder 5 and be considered a mitigating circumstance being analogous
to voluntary surrender. 6
SO ORDERED.
Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo,
Melo, Quiason, Puno, Vitug and Kapunan, JJ., concur.
Footnotes
2. Sec. 12. (1) Any person under investigation for the commission of an oense
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 aord the services of counsel, he must be provided with one. These
rights cannot be waived except in writing and in the presence of counsel.
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.
5. Felicilda vs. Grospe, 211 SCRA 285; People vs. Miranda, 2 SCRA 262.