G.R. No.

156427 January 20, 2006

AMANDO TETANGCO, Petitioner

DECISION

QUISUMBING, J.:

This petition for certiorari seeks to annul and set aside the Order,1 dated April 16, 2002, of public
respondent Ombudsman in OMB-CC-02-0151-C which dismissed the Complaint of petitioner
Amando Tetangco against private respondent Mayor Jose L. Atienza, Jr., for violation of Article
2202 of the Revised Penal Code (RPC). Also assailed is the Order,3 dated August 1, 2002, denying
the motion for reconsideration.

On March 8, 2002, petitioner filed his Complaint before the Ombudsman alleging that on January 26,
2001, private respondent Mayor Atienza gave P3,000 cash financial assistance to the chairman
and P1,000 to each tanod of Barangay 105, Zone 8, District I. Allegedly, on March 5, 2001, Mayor
Atienza refunded P20,000 or the total amount of the financial assistance from the City of Manila
when such disbursement was not justified as a lawful expense.

In his Counter-Affidavit, Mayor Atienza denied the allegations and sought the dismissal of the
Complaint for lack of jurisdiction and for forum-shopping. He asserted that it was the Commission on
Elections (COMELEC), not the Ombudsman that has jurisdiction over the case and the same case
had previously been filed before the COMELEC. Furthermore, the Complaint had no verification and
certificate of non-forum shopping. The mayor maintained that the expenses were legal and justified,
the same being supported by disbursement vouchers, and these had passed prior audit and
accounting.

The Investigating Officer recommended the dismissal of the Complaint for lack of evidence and
merit. The Ombudsman adopted his recommendation.

The Office of the Ombudsman, through its Over-all Deputy Ombudsman, likewise denied petitioner’s
motion for reconsideration.

Before us, petitioner assigns for resolution a single issue:

WHETHER OR NOT THE RESPONDENT OMBUDSMAN COMMITTED GRAVE ABUSE OF

The sole issue is, did the Ombudsman commit grave abuse of discretion in dismissing the
Complaint?

Petitioner insists that Mayor Atienza illegally disbursed public funds when he gave the
aforementioned financial assistance to the chairman and tanods of Barangay 105 since the
disbursement was not authorized by law or ordinance, which the Ombudsman did not consider when
it dismissed the Complaint of petitioner. According to petitioner, the dismissal by the Ombudsman
was capricious since the evidence on record was clear that the mayor was guilty of graft and
corruption.5

The Ombudsman, through the Solicitor General, contends that it did not abuse its discretion and
there was also no probable cause against private respondent for violation of Art. 220 of the RPC.6

For his part, Mayor Atienza avers that there was no grave abuse of discretion on the part of the
Ombudsman when it dismissed the Complaint.7

After considering the submissions of the parties, we find that the petition lacks merit. No grave abuse
of discretion is attributable to the Ombudsman.

It is well-settled that the Court will not ordinarily interfere with the Ombudsman’s determination of
whether or not probable cause exists except when it commits grave abuse of discretion.8 Grave
abuse of discretion exists where a power is exercised in an arbitrary, capricious, whimsical or
despotic manner by reason of passion or personal hostility so patent and gross as to amount to
evasion of positive duty or virtual refusal to perform a duty enjoined by, or in contemplation of
law.9 Thus, we held in Roxas v. Vasquez,10

… this Court’s consistent policy has been to maintain non-interference in the determination of the
Ombudsman of the existence of probable cause, provided there is no grave abuse in the exercise of
such discretion. This observed policy is based not only on respect for the investigatory and
prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon
practicality as well. Otherwise, the functions of the Court will be seriously hampered by innumerable
petitions assailing the dismissal of investigatory proceedings conducted by the Office of the
Ombudsman with regard to complaints filed before it, in much the same way that the courts would be
extremely swamped with cases if they could be compelled to review the exercise of discretion on the
part of the fiscals or prosecuting attorneys each time they decide to file an information in court or
dismiss a complaint by a private complainant.

In this case, the action taken by the Ombudsman cannot be characterized as arbitrary, capricious,
whimsical or despotic. The Ombudsman found no evidence to prove probable cause. Probable
cause signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in
themselves to warrant a cautious man’s belief that the person accused is guilty of the offense with
which he is charged.11 Here, the Complaint merely alleged that the disbursement for financial
assistance was neither authorized by law nor justified as a lawful expense. Complainant did not cite
any law or ordinance that provided for an original appropriation of the amount used for the financial
assistance cited and that it was diverted from the appropriation it was intended for.

The Complaint charges Mayor Atienza with illegal use of public funds. On this matter, Art. 220 of the
Revised Penal Code provides:

Art. 220. Illegal use of public funds or property. – Any public officer who shall apply any public fund
or property under his administration to any public use other than that for which such fund or property
were appropriated by law or ordinance shall suffer the penalty of prision correccional in its minimum
period or a fine ranging from one-half to the total of the sum misapplied, if by reason of such
misapplication, any damages or embarrassment shall have resulted to the public service. In either
case, the offender shall also suffer the penalty of temporary special disqualification.

If no damage or embarrassment to the public service has resulted, the penalty shall be a fine from 5
to 50 percent of the sum misapplied.
The elements of the offense, also known as technical malversation, are: (1) the offender is an
accountable public officer; (2) he applies public funds or property under his administration to some
public use; and (3) the public use for which the public funds or property were applied is different from
the purpose for which they were originally appropriated by law or ordinance. It is clear that for
technical malversation to exist, it is necessary that public funds or properties had been diverted to
any public use other than that provided for by law or ordinance.12 To constitute the crime, there must
be a diversion of the funds from the purpose for which they had been originally appropriated by law
or ordinance.13 Patently, the third element is not present in this case.

Conformably then with Section 2, Rule II of the Rules of Procedure of the Office of the
Ombudsman,14 the Investigating Officer may recommend the outright dismissal of a complaint if he
finds the same devoid of merit.15 That is exactly what happened in this case. Thus, no abuse of
discretion, much less grave abuse, may be attributed to the respondent Ombudsman.

WHEREFORE, the instant petition is DISMISSED for lack of merit. No pronouncement as to costs.

SO ORDERED.

LEONARDO A. QUISUMBING
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice

CONCHITA CARPIO MORALES DANTE O. TINGA

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairman, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairman’s Attestation, it is
hereby certified that the conclusions in the above Decision were reached in consultation before the
case was assigned to the writer of the opinion of the Court’s Division.

ARTEMIO V. PANGANIBAN
Chief Justice
Footnotes

1 Records, pp. 47-49.

2 Article 220. Illegal use of public funds or property. – Any public officer who shall apply any
public fund or property under his administration to any public use other than that for which
such fund or property were appropriated by law or ordinance shall suffer the penalty
of prision correccional in its minimum period or a fine ranging from one-half to the total of the
sum misapplied, if by reason of such misapplication, any damages or embarrassment shall
have resulted to the public service. In either case, the offender shall also suffer the penalty of
temporary special disqualification.

If no damage or embarrassment to the public service has resulted, the penalty shall
be a fine from 5 to 50 percent of the sum misapplied.

3 Records, pp. 56-58.

4 Rollo, p. 181.

5 Id. at 182-185.

6 Id. at 222-226.

7 Id. at 247-248.

8 See Esquivel v. Ombudsman, G.R. No. 137237, 17 September 2002, 389 SCRA 143, 151.

9Baylon v. Office of the Ombudsman, G.R. No. 142738, 14 December 2001, 372 SCRA 437,
449.

10 G.R. No. 114944, 19 June 2001, 358 SCRA 636, 646.

11 Supra, note 9.

12 Parungao v. Sandiganbayan, G.R. No. 96025, 15 May 1991, 197 SCRA 173, 180-181.

13 People v. Montemayor and Ducusin, No. L-17449, 30 August 1962, 116 Phil. 78, 81.

14 Administrative Order No. 07 of the Office of the Ombudsman.

Sec. 2. Evaluation.–Upon evaluating the complaint, the investigating officer shall

a) dismissed outright for want of palpable merit;

b) referred to respondent for comment;

c) indorsed to the proper government office or agency which has jurisdiction

e) referred for administrative adjudication; or

f) subjected to preliminary investigation.

15 See Knecht v. Hon. Desierto, G.R. No. 121916, 26 June 1998, 353 Phil. 494, 502.