people of the philippines, sb-i6-crm-0369 to 0380...

REPUBLIC OF THE PHILIPPINES^anlttganbapanQuezon City

Fourth Division

PEOPLE OF THE PHILIPPINES, SB-I6-CRM-0369 to 0380 andPlaintiff 0388

For: Violation of Section 3 (e)ofR.A. No. 3019

-versus-

MOH. ASADY MANDANGANHUSSIN and BERMA SALIHOMARALI

Accused.

X X

PEOPLE OF THE PHILIPPINES, SB-16-CRM-0381 to 0387Plaintiff

For: Violation of Section 3 (e)ofR.A. No. 3019

-versus-

MOH. ASADY MANDANGAN

HUSSIN and MERNALYN ABBAS

ISA

Accused.

X- -X

PEOPLE OF THE PHILIPINES, SB-16-CRM-0389 to 0400 andPlaintiff 0408

-versus-


HUSSIN and BERMA SALIH

OMARALI

Accused.

X 1 X

For: Malversation of Public

Funds under Art. 217 of RPC

/

Resolution

People V. Hussin, et. al.SB-16-CRM-0369 to 0408

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PEOPLE OF THE PHILIPPINES,Plaintiff

SB-I6-CRM-0401 to 0407

For: Malversation of PublicFunds

-versus-


HUSSIN and MERNALYN ABBAS

ISA

Accused.

Present:

Quiroz, J.Cruz, J.

Jacinto, J.

Promulgated on: NflV 0 4 201

X-

RESOLUTION

JACINTO,

This resolves accused Moh. Asady Mandangan Hussin's Demurrer toEvidence^ dated 19 March 2019.

Accused Hussin, together with Berma Salih Omarali, was chargedwith 13 counts of Violation of Section 3 (e) of R.A. No. 3019 (SB-16-CRM-0360 to 0380 and 0388) and another 13 counts of Malversation of PublicFunds as defined in Article 217 of the Revised Penal Code (RPC) (SB-16-CRM-0389 to 0400 and 0408). He was also charged with Memalyn AbbasIsa with seven counts of Violation of Section 3 (e) of R.A. No. 3019 SB-16-CRM-0381 to 0387) and another seven counts of Malversation of PublicFunds (SB-16-CRM-0401 to 0407). In all, he stands charged with 20 countsof Violation of Section 3 (e) of R.A. No. 3019 and another 20 counts ofMalversation of Public Funds.

The cases against accused Omarali and Isa have already beendismissed by the Court in its Resolutioff dated 11 February 2019 granting

Records, Vol. Ill, pp. 149-170.

r

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their separate demurrers to evidence. The dispositive portion of saidResolution reads in part:

WHEREFORE, premises considered, the subject Demurrers toEvidence are both GRANTED. Accordingly, BERMA SALIH OMARALIand MERNALYN ABBAS ISA are hereby ACQUITTED of the crimescharged.

xxxxx xxxx xxxxx xxxxx

Accused Hussin first filed a Motion for Leave to File Demurrer toEvidence^ dated 18 July 2018, which was denied by the Court in itsResolution^ dated 11 February 2019. Hence, accused Hussin filed the presentdemurrer without leave of Court, arguing as follows: (i) the prosecutionfailed to prove all the elements of the crimes charged; (ii) at most, theaccusations against him are predicated on presumptions or speculations; and,(iii) the prosecution failed to establish that he and his co-accused acted witha common design thus showing that they acted in conspiracy with eachother.

Accused Hussin stresses that: the prosecution witnesses do not havepersonal knowledge of the transactions and checks subject matter of thesecases; the Commission on Audit (COA) Reports^ do not prove that thechecks were issued without valid disbursement vouchers, and that thecorresponding transactions did not undergo public bidding; and, since theAudit Team admitted that they did not conduct a financial and complianceaudit of the financial transactions of the College,^ the prosecution's evidencedoes not conclusively establish the lack of valid disbursement vouchers,public bidding and liquidation in relation to the issuance of the checks inquestion.

He further points out that prosecution witness Mr. Danilo Sagaral,A Auditor was unsure whether the letters demanding the submission of

the supporting documents reached him (accused Hussin) as said letters werecoursed through the College Accountant. Finally, he points out that theprosecution merely submitted photocopies of the checks in question, inviolation of the best evidence rule. Such evidence has no probative value andeven assuming that they may be admitted in evidence, they still do not provethe prosecution's claim that they were issued without the corresponding

U^/.,pp. 128-137.^ Records, Vol. II, pp. 567-573.''Records,Vol. III,pp. II2-I13.' Exhibits "J" and "L" ,

^ Exhibits "J-1" and "L-I" 7

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disbursement vouchers, for procurements that did not undergo publicbidding, and were not properly liquidated.

With respect to the charges for violation of Sec. 3 (e) of R.A. No.3019, he further argues that the prosecution's evidence failed to establishthat he acted with manifest partiality, evident bad faith or gross inexcusablenegligence in the issuing the checks in favor of the suppliers. It also failed toestablish undue injury to any party, including the government.

In relation to the charges for Malversation of Public Funds, accusedargues that no demand was made for him to account for the funds involvedand the letters presented by the prosecution were for the production ofdocuments - not to account for the funds - and are therefore, not within thepurview of the last paragraph of Art. 217 of the RFC.

The prosecution did not submit any Comment/Opposition to accused sDemurrer to Evidence.

It its 11 February 2019 Resolution, the Court denied accused Hussin'sMotion for Leave to File Demurrer to Evidence ruling that on the bases ofthe checks and the testimonies of prosecution witnesses Danilo C. Sagaraland Nursida I. Muarip, the prosecution was able to establish the chargesagainst him. However, a second look at the prosecution's evidence, bothdocumentary and testimonial, has convinced the Court of the merits ofaccused Hussin's arguments.

Mr. Sagaral, the COA Auditor, merely testified that he conducted anaudit of the annual operations of the Tawi-Tawi Regional AgriculturalCollege (TRAC) for the years 2007 and 2008. Since he could not findcertain documents supporting the disbursement of the checks mentioned inthe present Informations, he issued several demand letters^ addressed toapetised Hussin and coursed through or "attention" the College Accountant,requesting for the submission of the documents pertaining to thedisbursement of funds for the years 2007 and 2008. Accused Hussin thendirected the College Accountant to submit the said documents,^ but the latterdid not comply.^ Thus, the Annual Operations Reports for the years 2007'^and 2008,'' stated that his team "could not undertake the necessary financialand compliance audit [of the transactions of the College] as the books ofaccounts were not presented to the Audit Team" and that "the Financial

1 Exhibits "L-2," "L-3," "L-4," "L-5," and "L-6."«TSN, 20 June 2017, p. 11.Id.

Exhibit "J."

"Exhibit "L"

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Statements submitted were grossly non-compliant with generally acceptedaccounting principles."

On the other hand, Ms. Nursida I. Muarip, the Acting CollegeAccountant, merely identified the copies of the checks subject of these casesthat are under her custody and the Certification'^ dated 2 February 2017 thatshe issued stating that the supporting documents of said checks are not underher custody.

In this connection. Sec. 3(e) of R.A. No. 3019, provides as follows:

Section 3. Corrupt practices of public officers. In addition to actsor omissions of public officers already penalized by existing law, thefollowing shall constitute corrupt practices of any public officer and arehereby declared to be unlawful:

X X X X

(e) Causing any undue injury to any party, including theGovernment, or giving any private party any unwarranted benefits,advantage or preference in the discharge of his officialadministrative or judicial functions through manifest partiality,evident bad faith or gross inexcusable negligence. This provisionshall apply to officers and employees of offices or governmentcorporations charged with the grant of licenses or permits or otherconcessions.

The elements thereof are as follows;'^

1. The accused must be a public officer discharging administrative,judicial or official functions;

2. He must have acted with manifest partiality, evident bad faith orgross inexcusable negligence; and

3. That his action caused any undue injury to any party, including thegovernment, or gave any private party unwarranted benefits,advantage or preference in the discharge of his functions.

In these cases, the prosecution was only able to prove the firstelement: that accused Hussin is a public officer.

'2 Exhibit "GG"

" Saludaga v. Sandiganbayan, G.R. No. 184537,23 April 2010. //

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The prosecution's evidence only establish that; (i) accused Hussinsigned the checks that are the subject of the Informations; (ii) TRAC failedto submit certain documents corresponding to the disbursements of saidchecks despite several demands; (ill) the current Accountant issued aCertification'"^ stating that said documents are not in her custody; and (iv)the COA failed to conduct compliance and financial audit of the transactionsof TRAC for the years 2007 and 2008 due to the lack of these documentsand non-compliance with generally accepted accounting principles. Nothingmore.

The COA Report upon which the prosecution's evidence heavilyrelies on, did not categorically state that: the checks had no correspondingDisbursement Vouchers; the checks were issued for procurements that didnot undergo public bidding; the accused converted the proceeds thereof fortheir own use; or that the government suffered undue injury. Moreimportantly, Mr. Sagaral's testimony that accused Hussin directed thenCollege Accountant Ernesto Majid to submit the said documents disprovesany allegation of bad faith, manifest partiality, or gross inexcusable neglect.

As explained in Fonacier v. Sandiganbayan.15

"Partiality" is synonymous with "bias" which "excites a disposition to seeand report matters as they are wished for rather than as they are." "Badfaith does not simply connote bad judgment or negligence; it imputes adishonest purpose or some moral obliquity and conscious doing of awrong; a breach of sworn duty through some motive or intent or ill will; itpartakes of the nature of fraud." "Gross negligence has been so defined asnegligence characterized by the want of even slight care, acting oromitting to act in a situation where there is a duty to act, not inadvertentlybut willfully and intentionally with a conscious indifference toconsequences in so far as other persons may be affected. It is the omissionof that care which even inattentive and thoughtless men never fail to takeon their own property. (Citations omitted)

The testimony of Ms. Muarip, also does not prove the prosecution'src^. In fact, she earlier executed an affidavit stating that former accountant&nesto Majid failed to properly turn over the documents to her.'^ Thisaffidavit was also marked as defense Exhibit "44."'^ It is rather curious thatMr. Majid happens to be the same person who failed to submit thedocuments sought by COA despite having been directed to do so by theaccused.

Exhibit HH.

" G.R. Nos. L-50691, L-52263, L-52766, L-52821, L-53350, L-53397, L-53417 & L-53520, 5 December1994.

TSN, 7 September 2017, p. 12.TSN, 7 September 2017, p. 14.r ̂

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While the COA observed that TRAC did not comply Avith generallyaccepted accounting principles in recording its transactions, the same cannotbe attributed to accused Hussin. Rather, it is the College Accountant whohas the responsibility to keep track of its financial transactions in accordancewith the prevailing COA rules and to ascertain that the documents arecomplete before any check is submitted for signature of the head of theoffice. The failure of the prosecution to present evidence of the transactionssurrounding the issuance of the checks also proved fatal to its cause.

In sum, the prosecution's evidence failed to establish all the essentialelements of the violation of Sec. 3 (e) of R.A. No. 3019.

The foregoing findings necessarily lead the Court to conclude furtherthat the prosecution failed to prove accused Hussin's liability forMalversation of Public Funds, the elements of which are as follows:

1. That the offender be a public officer;

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

3. That those funds or property were public funds or property forwhich he was accountable; and

4. That he appropriated, took, misappropriated or consented or,through abandonment or negligence, permitted another person to takethem.'^

As discussed earlier, the prosecution failed to present direct evidenceto show that accused misappropriated public funds by converting them forhis personal use. The COA had no findings in this regard and no demandwas ever made for accused to account for said funds. The audit reportsmerely mentioned that the audit team failed to conduct a financial andcompliance audit due to the non-submission of the supporting documentsduring the audit. And, the demand letters were merely requests for thesubmission of documents, as distinguished from a demand to explain a

ortage or a demand for restitution of the funds subject of the checks whichwere drawn against the account of the College.

Without a demand as contemplated in the last paragraph of Art. 217 ofthe RFC, the presumption of conversion to personal use cannot be applied asagainst accused Hussin.

Felicilda v. Grospe, G.R. No. 102494, 3 July 1992.

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In sum, the Court finds the prosecution's evidence insufficient toprove accused Hussin's guilt beyond reasonable doubt.

WHEREFORE, accused MOH. ASADY MANDANGANHUSSIN's Demurrer to Evidence dated 19 March 2019 is herebyGRANTED. For failure of the prosecution to prove his guilt beyondreasonable doubt, he is hereby ACQUITTED of the crimes of Violation ofSec. 3(e) of R.A. No. 3019 in SB-16-CRM-0369 to 0388 and Malversationof Public Funds under Article 217 of the Revised Penal Code in SB-16-CRM-0389 to 0408.

The Hold Departure Order (HDQ) issued as against him is herebyLIFTED. The Cash Bond under Official Receipt No. 7381859 he earlierposted for his provisional liberty is hereby ordered RELEASED subject tostandard accounting procedures.

SO ORDERED.

nfhAiaciBAYANFH^ACINTOAssojciate Justice

WE CONCUR:

LE^uTOUH^dz' j RE^^LP^. CRUZAssociate Justice / j ^ Associate Justice

Chairperson

Resolution

People V. Hussin, et. al.SB-16-CRM-0369to0408

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ATTESTATION

I attest that the conclusions in the above Resolution had been reachedin consultation with the Justices of the Court's Division.

Associate Justice

Chairperson, Fourth Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and theDivision Chairperson's Attestation, I certify that the conclusions in the aboveResolution had been reached in consultation before the case was assigned tothe writer of the opinion of the Court's Division.

JE-TAlMPARO M. C

Presiding

)

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