COMMISSION ON AUDIT MEMORANDUM NO. 80-237 June 9, 1980
TO
: All COA Managers, COA Regional Directors; Ministry, Bureau/Unit, Corporation,
Provincial/City Auditors; and all Others Concerned.
SUBJECT : Prosecution of cases of malversation of public funds and/or property.
For the information and guidance of all concerned, there is quoted hereunder in full
Ministry Circular No. 27 of the Ministry of Justice, dated May 27, 1980:
"MINISTRY CIRCULAR NO. 27
“TO :
All Provincial and City Fiscals, Their Assistants, and All Prosecutors in
the National Prosecution Service
"Re: Prosecution of cases of malversation of public funds and/or
property
"The attention of this Ministry has been called by Chairman Francisco S.
Tantuico, Jr. of the Commission on Audit to the apparent propensity of some
government prosecutors to dismiss complaints for malversation of government
funds an/or property filed by the Commission on Audit with the offices of the local
fiscals, or to cause the dismissal of similar cases already pending in courton the
ground that the outstanding amount had already been restituted by the
respondent/accused accountable officer. The Commission thus laments the fact
that meritorious cases of malversation of public funds which are established after
long and painstaking audit and investigation are dismissed by fiscals and judges
on filmsy grounds in fisgrant disregard of the facts, the law and the jurisprudence
on the matter. Indeed, such indifference emboldens malefactors to embezzle
government funds/and/or property knowing that even during the trial, they could
find sympathetic prosecutors and judges who would help them secure the
dismissal of their cases the moment they could pay the amount involved.
"It may be pertinent to state that, under Presidential Decree No. 1606
dated December 10, 1978, further revising Presidential Decree No. 1486,
creating the Sandiganbayan, crimes committed by public officers and employees,
including those employed in government-owned or controlled corporations,
embraced in Title VII of the Revised Penal Code, whether simple or complexed
with other crimes (Sec. 4, par. b) and, therefore, including malversation of public
funds (Chapter Four, Title VII, of the Revised Penal Code) fall within the
jurisdiction of the Sandiganbayan. On the other hand, Presidential Decree No.
1630, which took effect on July 18, 1979, further revising Presidential Decree No.
1487 and Presidential Decree No. 1607 gives to Tanodbayan prosecutors
"exclusive authority to conduct preliminary investigation of all cases cognizable
by the Sandiganbayan, to file informations therefore and to direct and control the
prosecution of said cases." (Sec. 17), this is irrespective of whether the cases fall
within the exclusive jurisdiction of the Sandiganbayan or within the concurrent
jurisdiction of the Sandiganbayan and the regular courts. (See Circular No. 27 of
Minister of Justice Ricardo C. Puno dated July 30, 1979)
"However, with respect to cases already undergoing trial, the prosecution
of which is undoubtedly still under your direction and control (Section 4, Rule 110
of the revised Rules of court), we must exhort you to be more vigilant and
uncompromising in the prosecution of such criminal cases involving government
funds and property. In this regard, your attention is invited the following
jurisprudence:
‘Reimbursement of the amount misappropriated is not a
defense. The fact that defendant municipal treasurer, in charge of
municipal funds abstracted these funds and applied them to his
own private use, and afterwards, of his own accord reimbursed
the sum of money before suit was brought and without the public
service having suffered any damages or delay by reason of such
taking, constituted malversation (Licas, 4 Phil. 458: Luntac, CA 50
O.G. 1182; Antonio, CA-G.R. No. 5378- Feb. 25, 1957; Resano,
CA-G.R. No. 14398-R. Jan. 10, 1957) Nor does the government's
recovery of the amount misappropriated affect defendant's
criminal liability. (Dowdell, Phil. 4)
‘Refund of the sum misappropriated before the
commencement of the criminal action does not exempt the guilty
official from liability for the crime. (Pedro Reyes, 14 Phil. 718,
Miranda, 112 Phil. 197 Benitez, 108 Phil. 921)
'This rule was followed in the case of Jose Feliciano, a
municipal treasurer of Pasig, Rizal, whose accounts were found
short in the sum of P84. The failure of an accountable public
officer to produce public funds upon demand of the auditor is
prima facie evidence that the missing funds or property had been
utilized for personal uses and were therefore misappropriated.
Consequently, the subsequent act of reimbursement cannot in any
way affect the existence of the crime of malversation already
committed. (Jose Feliciano, 15 Phil. 142; of Calimag, 12 Phil. 687)
'Since reimbursement is not a defense, it would not
extinguish the criminal liability, just as in estafa cases, the return
of the amount swindled would not extinguish the penal action.
(Bacsarpa v. Court of Appeals, 99 Phil. 112; Miranda, 112 Phil.
197)/Cited in Aquino, Revised Penal Code, 1976 Ed., Vol. II Book
II, pp. 1193-1194/
"Strict compliance is hereby enjoined.
FOR THE MINISTER OF JUSTICE:
(SGD.) JESUS N. BORROMEO
Deputy Minister of Justice"
All concerned are, therefore, hereby likewise exhorted to be ever vigilant and
uncompromising in initiating the prosecution of malversation cases against acccountable
officers and in assisting and collavorating with the government prosecutors assigned thereto,
always bearing in mind the contents of the aforequoted Circular. Any violation of the said
Circular on the part of the government prosecutor concerned should be brought to the attention
of this Commission promptly.
By authority of the Acting Chairman:
(SGD.) BARTOLOME C. FERNANDEZ, JR.
General Counsel