G.R. No.

184908               July 3, 2013

MAJOR JOEL G. CANTOS, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

VILLARAMA, JR., J.:

Petitioner Major Joel G. Cantos appeals the Decision1 of the Sandiganbayan in Criminal Case No.
SB-07-A/R-0008, which affirmed with modification the judgment2 of the Regional Trial Court (RTC) of
Manila, Branch 47, convicting him of the crime of Malversation of Public Funds under Article 217 of
the Revised Penal Code, as amended.

In an Information3 dated February 19, 2003, Major Cantos was charged as follows:

That on or about December 21, 2002 or sometime prior or subsequent thereto, in the City of Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, a public
officer, being then the Commanding Officer of the 22"d Finance Service Center, based in the
Presidential Security Group, Malacañang Park, Manila and as such is accountable for public funds
received and/or entrusted to him by reason of his office, acting in relation to his office and taking
advantage of the same, did then and there, willfully, unlawfully and feloniously take, misappropriate
and convert to his personal use and benefit the amount of THREE MILLION TWO HUNDRED
SEVENTY THOUSAND PESOS (₱3,270,000.00), Philippine Currency, from such public funds
received by him by reason of his Office to the damage and prejudice of the Government in the
aforestated amount.

CONTRARY TO LAW.

Upon motion by the prosecution, the trial court issued an Order4 granting the amendment of the date
of the commission of the offense from December 21, 2002 to December 21, 2000, the error being
merely clerical. When arraigned, Major Cantos entered a plea of not guilty.5

At the trial, the prosecution presented as witness Major Eligio T. Balao, Jr.6 He testified that on
December 21, 2000, he reported for duty as Disbursing Officer at the 22nd Finance Service Unit
(FSU), Presidential Security Group (PSG), Malacañang Park, Manila. At that time, he did not notice
any unusual incident in the office. He picked up some Bureau of Internal Revenue (BIR) forms which
he filed with the BIR Office at the Port Area, Manila. He returned to the office at around 10:00 a.m.
At around 12:00 noon, his commanding officer, Major Cantos, called him to his office and informed
him that the money he (Major Cantos) was handling, the Special Duty Allowance for the month of
December, and other Maintenance Operating Expenses in the amount of more or less ₱3 Million
was missing from his custody. Shocked, he asked Major Cantos where he kept the money, to which
the latter replied that he placed it in the steel cabinet inside his room. He then inquired why Major
Cantos did not use the safety vault, but Major Cantos did not reply.7

Major Balao further testified that Major Cantos asked him to get a screwdriver so he went out of the
office and got one from his vehicle. He gave the screwdriver to Major Cantos, who used it to
unscrew the safety vault. Then, he left the office and handed the screwdriver to Sgt. Tumabcao.
After a few minutes, Major Cantos instructed him to go to the house of Major Conrado Mendoza in
Taguig to get the safety vault’s combination number. However, Major Mendoza was not around.
When he returned to the office at around 4:00 p.m., the National Bureau of Investigation (NBI)
personnel took his fingerprints. He learned that all the personnel of the 22nd FSU were subjected to
fingerprinting. Thereafter, Col. Espinelli tried to force him to admit that he took the money, but he
maintained that he was not the one who took it.8

In his defense, Major Cantos testified that on July 2000, he was assigned as the Commanding
Officer of the 22nd FSU of the PSG, Malacañang Park, Manila. His duty was to supervise the
disbursement of funds for the PSG personnel and to perform other finance duties as requested by
the PSG Commander, Gen. Rodolfo Diaz. On December 19, 2000, he received a check from
Director Aguas in the amount of ₱1,975,000 representing the Special Allowance of PSG personnel.
Accompanied by two personnel, he went to the Land Bank branch just across Pasig River and
encashed the check. He placed the money in a duffel bag and kept it inside the steel cabinet in his
office together with the ₱1,295,000 that was earlier also entrusted to him by Gen. Diaz. Major
Cantos added that as far as he knows, he is the only one with the keys to his office. Although there
was a safety vault in his office, he opted to place the money inside the steel cabinet because he was
allegedly previously informed by his predecessor, Major Conrado Mendoza, that the safety vault was
defective. He was also aware that all personnel of the 22nd FSU had unrestricted access to his
office during office hours.9

Major Cantos also narrated that on December 20, 2000, he arrived at the office at around 9:00 a.m.
and checked the steel filing cabinet. He saw that the money was still there. He left the office at
around 4:00 p.m. to celebrate with his wife because it was their wedding anniversary. On the
following day, December 21, 2000, he reported for work around 8:30 a.m. and proceeded with his
task of signing vouchers and documents. Between 9:00 a.m. to 10:00 a.m., he inspected the steel
cabinet and discovered that the duffel bag which contained the money was missing. He immediately
called then Capt. Balao to his office and asked if the latter saw someone enter the room. Capt. Balao
replied that he noticed a person going inside the room, but advised him not to worry because he is
bonded as Disbursing Officer.10

In a state of panic, Major Cantos asked for Capt. Balao’s help in finding the money. Capt. Balao
asked him how the money was lost and why was it not in the vault, to which he replied that he could
not put it there because the vault was defective. Capt. Balao then suggested that they should make
it appear that the money was lost in the safety vault. In pursuit of this plan, Capt. Balao went out of
the office and returned with a pair of pliers and a screwdriver. Upon his return, Capt. Balao went
directly to the vault to unscrew it. At this point, Major Cantos told him not to continue anymore as he
will just inform Gen. Diaz about the missing funds. Major Cantos was able to contact Gen. Diaz
through his mobile phone and was advised to just wait for Col. Espinelli. When Col. Espinelli arrived
at the office, Col. Espinelli conducted an investigation of the incident.11

Lt. Col. Al I. Perreras, Executive Officer of the Judge Advocate General Office (JAGO), likewise
conducted an investigation of the incident. His testimony was however dispensed with as the
counsels stipulated that he prepared the Investigation Report, and that if presented, the same would
be admitted by defense counsel.12 It likewise appears from the evidence that Police Inspector Jesus
S. Bacani of the Philippine National Police (PNP) administered a polygraph examination on Major
Cantos and the result showed that he was telling the truth.13

On April 27, 2007, the RTC rendered a decision convicting Major Cantos of the crime charged, to
wit:
WHEREFORE, in view of the foregoing premises, the Court finds the accused Major Joel G. Cantos
GUILTY beyond reasonable doubt of the crime of Malversation of Public Funds, under paragraph 4
of Article 217 of the Revised Penal Code, and, there being no mitigating or aggravating
circumstance present, hereby sentences him to an indeterminate penalty of imprisonment for a
period of ten (10) years and one (1) day of Prision Mayor, as minimum, to Eighteen (18) Years, eight
(8) months and one (1) day of Reclusion Temporal, as maximum; to reimburse the AFP Finance
Service Center, Presidential Security Group, Armed Forces of the Philippines the amount of Three
Million Two Hundred Seventy Thousand Pesos (₱3,270,000.00); to pay a fine of Three Million Two
Hundred Seventy Thousand Pesos (₱3,270,000.00); to suffer perpetual special disqualification from
holding any public office; and to pay the costs.

SO ORDERED.14

In rendering a judgment of conviction, the RTC explained that although there was no direct proof that
Major Cantos appropriated the money for his own benefit, Article 217 of the Revised Penal Code, as
amended, provides that the failure of a public officer to have duly forthcoming any public funds or
property with 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 uses. The RTC concluded
that Major Cantos failed to rebut this presumption.

Aggrieved, Major Cantos appealed to the Sandiganbayan questioning his conviction by the trial
court.

On July 31, 2008, the Sandiganbayan promulgated the assailed Decision, the dispositive portion of
which reads as follows:

IN VIEW OF THE FOREGOING, the Decision promulgated on May 3, 2007 in Criminal Case No. 03-
212248 of the Regional Trial Court, National Capital Judicial Region, Branch 47, Manila finding the
accused-appellant Major Joel G. Cantos GUILTY beyond reasonable doubt of the crime of
Malversation of Public Funds under Article 217 of the Revised Penal Code is hereby AFFIRMED,
with the modification that instead of being convicted of malversation through negligence, the Court
hereby convicts the accused of malversation through misappropriation. The penalty imposed by the
lower court is also likewise AFFIRMED.

SO ORDERED.15

The Sandiganbayan sustained the ruling of the RTC. It held that in the crime of malversation, all that
is necessary for conviction is proof that the accountable officer had received public funds and that he
did not have them in his possession when demand therefor was made. There is even no need of
direct evidence of personal misappropriation as long as there is a shortage in his account and
petitioner cannot satisfactorily explain the same. In this case, the Sandiganbayan found petitioner
liable for malversation through misappropriation because he failed to dispute the presumption
against him. The Sandiganbayan noted that petitioner’s claim that the money was taken by robbery
or theft has not been supported by sufficient evidence, and is at most, self-serving.

Contending that the Sandiganbayan Decision erred in affirming his convicting, Major Cantos filed a
motion for reconsideration. In its Resolution16 dated October 6, 2008, however, the Sandiganbayan
denied the motion.

Hence, the present petition for review on certiorari. Petitioner assails the Decision of the
Sandiganbayan based on the following grounds:
 I.

THE HONORABLE SANDIGANBAYAN ERRED IN AFFIRMING PETITIONER'S CONVICTION FOR

MALVERSATION DESPITE ABSENCE OF EVIDENCE SHOWING THAT THE FUNDS WERE
CONVERTED TO THE PERSONAL USE OF PETITIONER.

II.

THE HONORABLE SANDIGANBAYAN ERRED IN AFFIRMING PETITIONER'S CONVICTION ON

THE BASIS OF THE MERE PRESUMPTION CREATED BY ARTICLE 217, PARAGRAPH 4, OF
THE REVISED PENAL CODE IN VIEW OF THE ATTENDANT CIRCUMSTANCES IN THE
PRESENT CASE.17

Essentially, the basic issue for our resolution is: Did the Sandiganbayan err in finding petitioner guilty
beyond reasonable doubt of the crime of malversation of public funds?

Petitioner argues that mere absence of funds is not sufficient proof of misappropriation which would
warrant his conviction. He stresses that the prosecution has the burden of establishing his guilt
beyond reasonable doubt. In this case, petitioner contends that the prosecution failed to prove that
he appropriated, took, or misappropriated, or that he consented or, through abandonment or
negligence, permitted another person to take the public funds.

On the other hand, the People, represented by the Office of the Special Prosecutor (OSP), argues
that petitioner, as an accountable officer, may be convicted of malversation of public funds even if
there is no direct evidence of misappropriation. The OSP asserts that the only evidence required is
that there is a shortage in the officer’s account which he has not been able to explain satisfactorily.

The petition must fail.

The Sandiganbayan did not commit a reversible error in its decision convicting petitioner of
malversation of public funds, which is defined and penalized under Article 217 of the Revised Penal
Code, as amended, as follows:

Art. 217. Malversation of public funds or property. – Presumption of malversation. – Any public
officer who, by reason of the duties of his office, is accountable for public funds or property, shall
appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or
negligence, shall permit any other person to take such public funds or property, wholly or partially, or
shall otherwise be guilty of the misappropriation or malversation of such funds or property shall
suffer:

xxxx

4. The penalty of reclusion temporal in its medium and maximum periods, if the amount involved is
more than twelve thousand pesos but is less than twenty-two thousand pesos. If the amount
exceeds the latter, the penalty shall be reclusion temporal in its maximum period to reclusion
perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special
disqualification and a fine equal to the amount of the funds malversed or equal to the total value of
the property embezzled.
The failure of a public officer to have duly forthcoming any public funds or property with 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. (Emphasis and underscoring supplied.)

Thus, the elements of malversation of public funds under Article 217 of the Revised Penal Code are:

1. that the offender is a public officer;

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

3. that those funds or property were public funds or property for which he was accountable;
and

4. that he appropriated, took, misappropriated or consented or, through abandonment or

negligence, permitted another person to take them.18

We note that all the above-mentioned elements are here present. Petitioner was a public officer
occupying the position of Commanding Officer of the 22nd FSU of the AFP Finance Center, PSG. By
reason of his position, he was tasked to supervise the disbursement of the Special Duty Allowances
and other Maintenance Operating Funds of the PSG personnel, which are indubitably public funds
for which he was accountable. Petitioner in fact admitted in his testimony that he had complete
control and custody of these funds. As to the element of misappropriation, indeed petitioner failed to
rebut the legal presumption that he had misappropriated the fees to his personal use.

In convicting petitioner, the Sandiganbayan cites the presumption in Article 217 of the Revised Penal
Code, as amended, which states that the failure of a public officer to have duly forthcoming any
public funds or property with which he is chargeable, upon demand by any duly authorized officer, is
prima facie evidence that he has put such missing fund or property to personal uses. The
presumption is, of course, rebuttable. Accordingly, if petitioner is able to present adequate evidence
that can nullify any likelihood that he put the funds or property to personal use, then that
presumption would be at an end and the prima facie case is effectively negated.

In this case, however, petitioner failed to overcome this prima facie evidence of guilt.  He failed to
1âwphi1

explain the missing funds in his account and to restitute the amount upon demand. His claim that the
money was taken by robbery or theft is self-serving and has not been supported by evidence. In fact,
petitioner even tried to unscrew the safety vault to make it appear that the money was forcibly taken.
Moreover, petitioner’s explanation that there is a possibility that the money was taken by another is
belied by the fact that there was no sign that the steel cabinet was forcibly opened. We also take
note of the fact that it was only petitioner who had the keys to the steel cabinet.19 Thus, the
explanation set forth by petitioner is unsatisfactory and does not overcome the presumption that he
has put the missing funds to personal use.

Malversation is committed either intentionally or by negligence. The dolo or the culpa present in the
offense is only a modality in the perpetration of the felony. Even if the mode charged differs from the
mode proved, the same offense of malversation is involved and conviction thereof is proper.20 All that
is necessary for conviction is sufficient proof that the accountable officer had received public funds,
that he did not have them in his possession when demand therefor was made, and that he could not
satisfactorily explain his failure to do so. Direct evidence of personal misappropriation by the
accused is hardly necessary as long as the accused cannot explain satisfactorily the shortage in his
accounts.21 To our mind, the evidence in this case is thoroughly inconsistent with petitioner's claim of
innocence. Thus, we sustain the Sandiganbayan's finding that petitioner's guilt has been proven
beyond reasonable doubt.
WHEREFORE, the petition is DENIED. The Decision dated July 31, 2008 of the Sandiganbayan in
Criminal Case No. SB-07-A/R-0008 convicting Major Joel G. Cantos of the crime of Malversation of
Public Funds is AFFIRMED and UPHELD.

With costs against the petitioner.

SO ORDERED.

MARTIN S. VILLARAMA, JR.

Associate Justice