G.R. No. 87186 April 24, 1992 CAMILO VILLA, petitioner vs.

SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents. CRUZ, J.: The herein petitioners' basic contention is that as their alleged co-conspirators have been acquitted by the Court of Appeals, they too should have been absolved by the Sandiganbayan under the doctrine of "the law of the case." They also submit that, in any event, the evidence against them was insufficient to prove their guilt and, on that ground, they should have also been presumed innocent and acquitted. These are the relevant facts. Investigation of alleged anomalous transactions at the Civil Aeronautics Administration (CAA), Mactan International Airport, led to the filing in 1975 of criminal charges in the Circuit Criminal Court of Cebu City against Casimiro David, administrative assistant at CAA, Mactan, and chairman of the Bidding Committee; Estanislao Centeno, cash aide; Fernando Dario, airport attendant; and Serafin Robles, janitor, for violation of Section 3, paragraphs (a) 1 and (b) 2 of R.A. 3019 in relation to the Unnumbered Presidential Memorandum dated April 22, 1971, 3 as well as Sec. 12, Rule XVIII of the Civil Service Rules 4 and Section 1(x) of Presidential Decree No. 6 dated September 27, 1972. 5 The case involved questionable payments made by the CAA Mactan to Rocen Enterprises and Sprayway Corp., dealers in paper products and printed matter, for the purchase of electrical items and the cost of their installation, in the total amount of P299,175.00. Dario, Centeno and Robles represented these firms in the transaction. Another accused, Mactan Airport General Manager Arturo Jimenez, was dropped from the amended information after a reinvestigation. On October 20, 1978, the Circuit Criminal Court of Cebu City then presided by Judge Romeo Escareal (now Associate Justice and Chairman of the Second Division of the Sandiganbayan) rendered a decision finding all the accused guilty beyond reasonable doubt of violation of Section 3, paragraphs (a), (e), 6 (h), and (i) 7 of R.A. 3019. All the accused appealed the judgment of conviction the Court of Appeals. The decision of the trial court included findings that Arturo Jimenez; Rodolfo Montayre, assistant airport general manager for operations; Camilo Villa, chief, logistics section; Josefina Sucalit, technical inspector, COA, assigned at CAA Mactan; Hereto Leonor, acting chief accountant; and Manuel Bustamante, regional auditor of Region 7, COA, conspired and were equally liable with the convicted accused. Accordingly, Judge Escareal directed Chief State Prosecutor Juan A. Sison of the Ministry of Justice to assign a State Prosecutor to conduct an investigation for possible violations of the AntiGraft and Corrupt Practices Act, falsification of public documents, malversation of public funds, overpricing, unexplained wealth, and violation of accounting and auditing rules and regulations, and to file the corresponding charges if warranted. The investigation was conducted as directed and led to the filing of an information with the Sandiganbayan, where it was docketed as Criminal Case No 5915, against Jimenez, Montayre, Villa, Bustamante, Leonor and Sucalit for violation of Section 3, R.A. 3019. The information read as follows:

That during the period from June 9 to 30, 1975, or thereabout, at Lapu-Lapu City, Philippines, and within the jurisdiction of this Honorable Sandiganbayan, the accused Arturo Somosa Jimenez, then Airport General Manager, Mactan International Airport; Rodolfo Evangelista Montayre, Assistant Airport General Manager; Camilo Gido Villa, Chief of the Logistics Section, CAA Mactan; Josefina Sanchez Sucalit, Technical Inspector of the COA, Cebu City; Manuel Raneses Bustamante, Regional Auditor, Cebu City; and Hereto Cabrera Leonor, Chief Accountant, CAA, Manila, taking advantage of their public positions and while in the performance of the duties of their office, together with Fernando Dario, Estanislao Centeno, Serafin Robles and Casimiro David, who had already been convicted in the Criminal Circuit Court of Cebu in Criminal Case No. CCC-XIV-1457Cebu, entitled "People v. Casimiro David, et al.," confederating together and mutually helping one another or otherwise, acting in concert, with intent to defraud and gain, did then and there, wilfully, unlawfully and feloniously cause to influence other public officials, or allow to be influenced, to violate rules and regulations duly promulgated by competent authority relative to their respective duties, and for financial and pecuniary interest, by then and there permitting, promoting and approving the negotiation, perfection and consummation of the purchase and payments of the Civil Aeronautics Administration (CAA), Mactan International Airport, of which the accused are by law called upon to officially intervene and take part, the following items or articles, to wit: 1 set three phase primary metering 13.8 KV 400 KVA, 60 cycles complete with demand metering, voltage and current transformers valued at P30,000.00; 3 pieces 15O KVA Distribution Transformers, single phase, 60 cycles 2400 volts-240 V/120V oil cooled valued at P69,000.00; 3 pieces 150 KVA Power transformers, single phase, 60 cycles, 138 KV/2400 volts oil cooled valued at P90,000.00; 4 sets high voltage change over switch 3 poles double throw KV valued at P12,050.00; 6 sets high voltage fuse cut-outs valued at P33,000.00; and cost of installation P9,000.00 costing all in all P299,175.00, Philippine Currency, from "Rocen Enterprises" knowing fully well that the said entity is not a reputable manufacturer and/or supplier of the above-enumerated articles, thus, giving said "Rocen Enterprises" unwarranted benefits, advantage or preference, in violation of prohibitions of the Presidential Memorandum, dated April 22, 1971, Sec. 2, Rule XVIII of the Civil Service Rules and Regulations and of Sec. 1(x), of Presidential Decree No. 6. dated September 27, 1972, to the damage and prejudice of the Philippine Government. CONTRARY TO LAW. Upon arraignment, all the accused pleaded not guilty. The case against Manuel Bustamante was, on motion of the prosecution, dismissed without prejudice for lack of prima facie case. Jimenez, Montayre, Villa and Sucalit were later suspended from public office during the pendency of the case. Through the testimonial and documentary evidence it presented at the trial, the prosecution sought to establish the following facts: Dario, Centeno and Robles negotiated with Jimenez for the purchase of transformers and electrical supplies for the Mactan International Airport. The three were on leave during that time. On June 1, 1975, Montayre issued Requisition and Issue Voucher 6-513-75 for the following articles: 1 set three phase primary metering 13.8 KV 400 KVA, 60 cycles complete with demand metering, voltage and current transformers; 3 piece 150 KVA Distribution Transformers, single phase, 60 cycle 2400 volts-240 V/120V oil

cooled; 3 pieces 150 KVA Power transformers, single phase, 60 cycles, 138 KV/2400 Volts oil cooled; 4 sets high voltage Changeover Switch, 3 poles double throw 15 KV; 6 sets-High Voltage fused cut outs, 15 KV; 750 feet of 750 MCKTHW 600 Volts Copper conductor. Purpose: For installation of commercial power at Mactan Centralized Emergency Power STM. Jimenez approved the requisition and Leonor certified to the availability of funds. Jimenez signed Advertisement No. 16-75, and in due time the required invitations to bid calling for sealed proposals for the furnishing and delivery of the supplies were issued. On June 15, 1975, Jimenez sent Sucalit to Manila to canvass the subject supplies at various reputable dealers or manufacturers in Manila. Sucalit delivered Advertisement Forms to Rocen Enterprises in Pasay City, Utilities Equipment and Supply Corporation (UTESCO) in Quezon City, and Intrade Corporation in Makati. On June 25, 1975, the sealed bids were opened by the Bidding Committee. The Committee prepared an Abstract of Bids signed by David, Villa, Sucalit, Wigberto Fuentebella, Leonardo Mahinay, and Fermin Beltran, approving the lowest bid, which was that of Rocen Enterprises. On the same day, a Purchase Order addressed to Rocen Enterprises was prepared and signed by David and approved by Jimenez, with Leonor certifying to the availability of funds. From June 25-30, 1975, four reports of inspection were prepared and signed by Sucalit, Villa and Montayre; four certificates of delivery were signed by Montayre and Villa; and four general vouchers for P70,180, P75,900, P99,000 and P53,020 respectively were prepared and signed by Villa, Montayre, Leonor and Jimenez. On June 30, 1975, four treasury warrants in the amounts respectively of P70,180, P57,980, P99,000, P53,020, all payable to Rocen Enterprises and/or Fernando Dario, were issued in payment for the articles requisitioned. The Warrant Register at the airport shows that five checks in the separate amounts of P70,180, P99,000, P53,020, P57,980, P17,920, were delivered to Centeno. It turned out that the requisitioned articles were delivered at Cebu City only on July 6, 1975, and were shipped by UTESCO, a losing bidder, to Rocen Enterprises, c/o Mrs. Remedios Centeno via the vessel Sweet Faith. The freight and handling charges of P5,500.00 incurred in connection with the delivery were reimbursed under a General Voucher signed by Jimenez, Montayre and Leonor to Rocen Enterprises. Rocen Enterprises, the winning bidder, was ostensibly owned by Remedios Centeno, wife of Estanislao Centeno. Its line of business, as registered with the Bureau of Domestic Trade on August 9, 1974, was "paper products and printed matter." On August 11, 1975, the firm was incorporated and registered with the Securities and Exchange Commission as "Rocen Trading Incorporated" with an authorized capital stock of P100,000, P20,000 of which had been subscribed and P5,000 paid up. The incorporators were Remedios Centeno, Priscilla Robles, Glicerio Efren, Rogelio Santos, Estanislao Centeno and Serafin Robles. The common defense of all the accused was as follows: The acquisition of the electrical items was an emergency measure necessitated by the brownout at Mactan Airport on the night of June 1, 1975. Incoming flights had to be diverted as the runway and

taxiway lights necessary for a proper landing were all out. Jesus Singson, CAA Director, directed Mactan officials to implement a plan to install commercial power at Mactan Airport which at that time depended on the Mactan Electric Company and the Philippine Air Force for its power source. For this purpose, Cash Disbursement Ceilings (CDC) in the total amount of P310,000.00 were released. As the CDCs would expire on June 30, 1975, it was necessary to make it appear in the vouchers, supporting documents, reports of inspection, and certificates of delivery that the items requisitioned were delivered and inspected on or before June 30, 1975. The CDCs had to be utilized before the end of the fiscal year as otherwise they would revert to the general fund. In view of the emergency nature of the purchase, there was no time to advertise and the Bidding Committee had to adopt the more expeditious mode of procurement. Anyway, the prices paid by the government were reasonable. Jimenez testified that he approved the vouchers after verifying that all the supporting documents were in order and duly certified by the proper officers. He disclaimed responsibility in determining the reputability of the supplier. He admitted he knew Dario, Centeno and Robles but denied that they were in his office at Mactan Airport to follow up the transaction. Montayre contended that his participation in the transaction was limited to requisitioning the electrical items. He was not a member of the Bidding Committee and so had nothing to do with the canvassing of the prices, the determination of the winning bidder, and the verification of reputability of the supplier. Villa, a member of the Bidding Committee, argued that he did not participate in the canvass of the requisitioned items. As chief of the logistics section, it was his duty to determine the items needed for the airport but not the availability of funds for their acquisition. He processed the vouchers before June 30, 1975, because the funds needed for the items requisitioned would not be available if not disbursed before that date. He did this upon Montayre's direction. Sucalit testified that she made a canvass of the items requisitioned independent of the Bidding Committee, to use as a basis for determining the reasonableness of the prices quoted by suppliers. She acted pursuant to the National Accounting and Auditing Rules. She added that she went to Manila to make the canvass because there was no supplier in Cebu City that could furnish the needed items. She had no responsibility to determine who were qualified to participate in the bidding as she was not a member of the Bidding Committee. She pre-audited and initialed the vouchers after verifying all supporting documents and certifications. She also said she signed the inspection reports ahead of the actual delivery of the items because the CDCs would expire on June 30, 1975. In its decision dated July 28, 1988, the First Division of the Sandiganbayan found all the accused guilty beyond reasonable doubt of violating Section 3, paragraphs(a), (c) 8 (h), and (i) of R.A. 3019, in relation to the Unnumbered Memorandum of the President dated April 22, 1971, Section 12, Rule XVIII of the Civil Service Rules and Section 1(x) of P.D. No. 6. Each of the accused was sentenced to suffer an indeterminate penalty ranging from a minimum of 3 years to a maximum of 6 years imprisonment and perpetual disqualification from public office. The Sandiganbayan said: Carefully evaluating the evidence on record, it has became abundantly clear to Us that accused Arturo S. Jimenez, Rodolfo E. Montayre, Camilo G. Villa, Josefina S. Sucalit, and Hereto C. Leonor had conspired with Fernando Dario, Estanislao Centeno, Serafin Robles and Casimiro David in the commission of the crime for which the last four were convicted by the Circuit Criminal Court in Case No. CCC-XIV-1457, namely, "Violation of Section 3, paragraphs (a), (c), (h), and (i), of Republic Act 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, in relation to the Unnumbered

Memorandum of the President of the Philippines dated April 22, 1971, Section 12, Rule XVIII of the Civil Service Rules, and Section 1(x) of Presidential Decree No. 6. We are not disposed to disregard the finding of the court in that case that "a massive and gigantic conspiracy existed between and among the four accused herein, namely, David, Centeno, Dario, and Robles, as well as practically all of the high-ranking officials of CAA Mactan" (namely, Airport General Manager Arturo S. Jimenez, Asst. Airport General ,Manager Rodolfo E. Montayre, Camilo G. Villa as Chief of the Logistics Section, Mrs. Josefina S. Sucalit, Technical Property Inspector of the COA detail, and Chief Accountant Hereto C. Leonor), the purpose of which was to corner and monopolize all requisitions and purchases of supplies and equipment at CAA Mactan, regardless of the source or the reputability of the suppliers. The Sandiganbayan observed that there was an overcharge in the four vouchers between the prices quoted by Rocen as reflected in the Abstract of Bids and the amounts actually paid. The overcharge, totaling P27,100, was meant to represent the cost of installation, but there was no justification for including this item in the vouchers and no proof either that Rocen undertook the installation. On the contrary, this work appeared to have been undertaken by Montayre and personnel from the Bureau of Air Transportation. The Sandiganbayan held: From all facts and circumstances, admitted or undisputed, as well as those inferences, deductions, and conclusions logically and reasonably proceeding therefrom, We are drawn into the conclusion that accused Arturo S. Jimenez, Rodolfo E. Montayre Camilo G. Villa, Josefina S. Sucalit and Hereto C. Leonor, indeed, had conspired with Casimiro David, Estanislao Centeno, Fernando Dario and Serafin Robles in a dastardly scheme to defraud the government. When accused Jimenez, Montayre, Villa, Sucalit and Leonor signed, approved and/or executed the documents that facilitated the consummation of the transaction in question, in conspiracy with David, Centeno, Dario and Robles, in direct violation of existing rules and regulations promulgated by competent authority, they have become criminally liable under Section 3. paragraph (a), of Republic Act No. 3019, as amended. They not only persuaded, induced, or influenced each other as public officers to commit such flagrant violations, but also allowed themselves to be so persuaded, induced or influenced to railroad the transaction in question. They had wittingly allowed the questioned purchase from Rocen Enterprises, an entity which is not a reputable manufacturer or a duly registered and licensed distributor of the equipment purchased, the same being engaged in the business only of "paper products and printed matters." By the questioned transaction, Rocen Enterprises was also given unwarranted benefits, advantage, or preference, to the exclusion of more established and/or reputable establishments manufacturing or dealing in the kind of equipment purchased. There was manifest partiality, evident bad faith, and inexcusable negligence in accepting the bid of Rocen Enterprises and approving the same within a period of only one day, in accomplishing the purchase order and general vouchers in payment of the requisitioned equipment within a period of one week, and delivering the corresponding warrants or checks in payment of the same, through a CAA employee even before delivery of said equipment. Section 3, paragraph (3) of Republic Act No. 3019, as amended, was thereby violated. By combining, confederating, and conspiring with Centeno, Dario, and Robles to promote or facilitate efforts that led to the violation of Section 3, paragraph (h) of Republic Act No. 3019, for which Centeno, Dario, and Robles were convicted, accused Jimenez, Montayre, Villa, Sucalit and Leonor rendered themselves equally liable. Finally, there can be no doubt at all that Jimenez, Montayre, Villa, Sucalit and Leonor are liable under Section 3, paragraph (i) since they participated in or were responsible for the approval of a manifestly unlawful, inequitable, or irregular transaction, by which actuations interest for personal gain shall be presumed against them.

While the Sandiganbayan case was pending, the Court of Appeals, in a decision promulgated on January 29, 1988, reversed the judgment of conviction rendered by the Circuit Criminal Court, on the ground of insufficient evidence. This decision was subsequently, and quite understandably, invoked by the herein petitioners in their separate motions for reconsideration of the decision of the Sandiganbayan. In a resolution dated February 17, 1989, the Sandiganbayan denied all these motions for reconsideration. Hence, four separate petitions for review were filed with this Court, by Villa, in G.R. No. 87186; Montayre, in G.R. No. 87281; Sucalit, in G.R. No. 87466; and Jimenez, in G.R. No. 87524. Leonor did not appeal, On May 4, 1989, G.R. No. 87466 was dismissed for non-compliance with Circular No. 1-88. Sucalit filed a motion for reconsideration, which was denied with finality. On October 3, 1989, however, this Court resolved to hold in abeyance enforcement of final judgment on the petition pending resolution of the other petitions. On August 22, 1989, we resolved to consolidate these cases upon motion of the Solicitor General, who was directed to file a Consolidated Comment on all the cases. The common issues raised in these petitions are: 1. Whether or not the decision of acquittal of the Court of Appeals promulgated 6 months before the decision of the Sandiganbayan bars their conviction pursuant to the doctrine of "the law of the case." 2. Whether or not the testimonies of prosecution witnesses, which were discredited by the Court of Appeals as biased, merit belief by the Sandiganbayan. 3. Whether or not there was conspiracy among the petitioners. The petitioners contend that since their cases in the Sandiganbayan were merely an offshoot of Criminal Case No. CCC-XIV-1457 in the Circuit Criminal Court of Cebu City, which was reversed by the Court of Appeals in CA-G.R. No. 24142, the decision of the Court of Appeals has become the "law of the case" which cannot now be overturned by any court and should be applied in the case at bar. Accordingly, they should also be acquitted. This contention is erroneous. The doctrine has been defined as "that principle under which determinations of questions of law will generally be held to govern a case throughout all its subsequent stages where such determination has already been made on a prior appeal to a court of last resort. It is merely a rule of procedure and does not go to the power of the court, and will not be adhered to where its application will result in an unjust decision. It relates entirely to questions of law, and is confined in its operation to subsequent proceedings in the same case." In Jarantilla v. Court of Appeals, 9 we held: Law of the case" has been defined as the opinion delivered on a former appeal. More specifically, it means that whatever is once irrevocably established, as the controlling legal rule of decision between the same parties in the same case continue to be law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicted continues to the fact of the before case before the court (21 C.J.S. 330) (Italic supplied). It need not be stated that the Supreme Court being the court of last resort, is the final arbiter of all legal question properly brought before it and that its decision in any given case constitutes the law of that particular case. . . (Emphasis supplied). It is a rule of general application that the decision of an appellate court in a case is the law of the case on the points presented throught all the subsequent proceeding in the case in both the trial and the appellate courts, and no question necessarily

involved and decided on that appeal will be considered on a second appeal or writ of error in the same case, provided the facts and issues are substantially the same as those on which the first question rested and, according to some authorities, provided the decision is on the merits. In light of these definitions, we find that the Sandiganbayan did not err in holding as follows: The decision of the Court of Appeals reversing the judgment of the Circuit Criminal Court in Case NO. CCC-XIV-1457, was not, however, a determination of a question of law. The present case is not merely a stage or subsequent proceedings of that case. Although related, they are entirely distinct and separate cases. While in both cases, the transaction involved, the charges laid, and the persons alluded to as co-conspirators are one and the same, there is definitely no identity of parties between the two cases. The persons accused in one differ from those in the other. There is, therefore, no way whereby the doctrine of the law of the case would apply. If ever the findings of the Court of Appeals in the case decided by it would be considered operative as the "law of the case," the same would be confined in its operations solely to the case and to those accused therein. The petitioners also invoke res judicata, pointing out that in Criminal Case No. CCC-XIV-1457 and the case at bar, there was identity of the transaction involved, the witnesses and documentary evidence presented, and the offenses charged. The judgment of acquittal in CA G.R. No. 24142 does not constitute res judicata so as to bar a judgment of conviction in Criminal Case No. 5915. One of the requisites of res judicata is that there must be substantial identity of parties, 10 which is not present in the instant case. The petitioners claim that the Sandiganbayan "relied very heavily, if not mainly" on and has merely adopted the findings of facts of the Circuit Criminal Court in arriving at its judgment of conviction. With the reversal of the decision of the Circuit Criminal Court, the Sandiganbayan decision has also lost its basis. This argument is also unacceptable. While the Sandiganbayan did consider the decision of the Circuit Criminal Court in finding the petitioners guilty, this was not the sole reason for their conviction. Apart from the conclusions of that court, the Sandiganbayan made its own findings of fact based on the testimony of witnesses and documentary evidence submitted to it during the trial. In fact, the major part of its decision dwelt its own analysis of such evidence. The petitioners also invoke the decision of the Court of Appeals rejecting the charge of conspiracy and contend that its finding that David, Centeno, Dario and Robles did not conspire among themselves or with the herein petitioners precluded the Sandiganbayan from arriving at a contrary conclusion. This defense is also untenable. In United States v. Remigio, 11 the Court held that although "a conspiracy is in its nature a joint offense . . . it does not follow that one person only cannot be convicted of conspiracy. So long as the acquittal or death of a co-conspirator does not remove the bases for a charge of conspiracy, one defendant may be found guilty of the offense." Notably, the judgment of acquittal of the Court of Appeals invoked by the herein petitioners was based on the insufficiency of the evidence of guilt of the accused therein and not on a finding that no offense had been committed. The petitioners complain that the Sandiganbayan erred in giving credence to the testimony of the prosecution witnesses which had earlier been disbelieved by the Court of Appeals as biased. The answer to this is that the findings of fact of the Sandiganbayan in the cases before us are binding on this Court in the absence of a showing that they come under the established exception. It is also

worth noting that the Sandiganbayan, being a trial court, was in a position to observe the demeanor of the witnesses, unlike the Court of Appeals which had to rely only, in the words of the Solicitor General, "on a mute transcript of stenographic notes." It is asserted that the omission to ascertain the reputability of the supplier would result only in administrative and not criminal liability, as held by the Court of Appeals. We do not think so. Not only administrative but also criminal liability under the aforementioned paragraphs (a) and (e) Section 3, of R.A. 3019 was incurred. The failure to ascertain the reputability of Rocen Enterprises constituted a violation of the rules and regulations promulgated by competent authority and comes under paragraph (a). The manifest partiality that resulted in unwarranted benefits to Rocen was in contravention of paragraph (e). Also invoked is our ruling in Bayot v. Sandiganbayan. 12 to wit: Petitioner herein, Reynaldo R. Bayot, together with, his co-accused Lorenzo Ga. Cesar, was one of the those charged and convicted in a joint decision by the Sandiganbayan, of the crime of estafa thru falsification of public documents. Both were sentenced to a total of 577 years imprisonment by the Sandiganbayan on exactly the same evidence which this Court had pronounced as "woefully inadequate" and "too conjectural and presumptive to establish personal culpability," (Cesar v. Sandiganbayan, 134 SCRA 105). The petition for review filed by Lorenzo Ga. Cesar was granted by this Court and in the decision rendered on January 17, 1985 in G.R. Nos. L-54719-50, 134 SCRA 105, the Court en banc, reversed the decision of the Sandiganbayan and acquitted Lorenzo Ga. Cesar. The charge and the evidence submitted against Lorenzo Ga. Cesar being one and the same against the herein petitioner Reynaldo R. Bayot, the Court should do no less with respect to the latter. In Cesar v. Sandiganbayan, 13 it was this Court en banc that reversed the decision convicting the accused of estafa through falsification of public documents because it had not been proved that Cesar signed the questioned vouchers. This served as the basis for acquitting Bayot in his own petition for review as they were charged under identical informations and convicted in a joint decision based on the same evidence presented before Sandiganbayan. In the case at bar, the first three accused were convicted by the Circuit Criminal Court and later acquitted by the Court of Appeals. The second batch of accused, the petitioners herein, were convicted directly by the Sandiganbayan. Obviously, we cannot rule on the decision of the Court of Appeals because it is not before us. What is the decision of the Sandiganbayan, which, is the case we can review. In so doing, we are not bound by the findings of the Court of Appeals, which have not been appealed to this Court. We are confined only to the examination of the proceedings in the Sandiganbayan because it is its decision that has been elevated to us. From the records of that case, to repeat, we are satisfied that there was a conspiracy among some of the petitioners. The failure to show that the petitioners profited from the transaction would not necessarily result in acquittal. In Luciano v Estrella, 14 Justice J.B.L. Reyes, in interpreting paragraph (g), Section 3 of R.A. 3019, said: . . . the act treated thereunder partakes of the nature of malum prohibitum; it is the commission of that act as defined by the law, not the character or effect thereof, that determines whether or not the provision has been violated. And this construction would be in consonance with the announced purpose for which Republic Act 3019 was enacted, which is the repression of certain acts of public officers and private persons constituting graft or corrupt practices or which may lead thereto. Note that the law does not merely contemplates repression of acts that are unlawful or corrupt per se, but even of those that may lead to or result in graft and corruption . . . The petitioners stress that the investigating fiscal who conducted the preliminary investigation

cleared them of liability (while Tanodbayan Fernandez maintained there was conspiracy) and argue that the findings of the former should prevail pursuant to Quizo v. Sandiganbayan. 15 That case, in fact, argues against them. In Quizo, it was the Tanodbayan himself who moved for the dismissal of the information with the Sandiganbayan which denied the same and which denial we set aside. The investigating fiscal being the subordinate of the Tanodbayan, the letter's decision should prevail. Also cited is the case of Pajaro v. Sandiganbayan, 16 where it was held: In view of the findings of the Court of Appeals in CA-G.R.. No, SP-07493, April 30, 1987, the prosecution of petitioner in the Sandiganbayan should be discontinued for the Sandiganbayan may not review, revise or reverse the findings of the Court of Appeals in relation to which the Sandiganbayan, a special court with special and limited jurisdiction. is inferior. In that case, Pajaro, as officer-in-charge of the Office of the City Treasurer of Dagupan City, was charged before the Tanodbayan with violation of R.A. 3019 for having given undue advantage and benefits to a delinquent taxpayer by allowing it to pay in installment instead of collecting the taxes due within the period fixed in the Local Tax Code. While the case was pending, Llamas filed a petition for mandamus to compel Pajaro to collect the delinquent's tax liabilities. The trial court dismissed the suit and on appeal was upheld by the Court of Appeals on the ground that no prejudice had cause to the city, which in fact stood to gain more from the promissory note than the amount awarded by the trial court. The Tanodbayan filed the information against Pajaro but later recommended its dismissal, which the Sandiganbayan denied. Citing the Court of Appeals decision, Pajaro moved for reconsideration, which the Sandiganbayan also denied. This prompted the petition for certiorari and prohibition where we ruled in favor of Pajaro. The Pajaro Case is not applicable because, as correctly observed by the Solicitor General, one and the same act of the same party was the subject of separate cases before the Court of Appeals and the Sandiganbayan. In the cases before us, the parties absolved by the Court of Appeals are different from the parties in the Sandiganbayan case and the acts committed by the accused in this case are different from the acts committed by the accused in Criminal Case No. 7CC-XII-1457. Lastly, it is contended that there was denial of due process because the case against them was heard by several sets of justices as follows Nov. 8, 1983 Pamaran Molina Purisima Jun. 30, 1984 Pamaran Consolacion Jabson Jan. 31, 1984 Pamaran Consolacion Quimbo Mar. 26, 1984 Pamaran Molina Consoldcion Sept. 25, 1984 Pamaran Escareal Molina Mar. 11, 1985 Pamaran Molina Amores May 28, 1985 Pamaran Jabson Amores Sept. 23, 1985 Pamaran Amores VeraCruz July 1-2, 1986 Garchitorena Jabson Joson Sept. 8-10, 1986 Garchitarena Jabson Joson Nov. 4-6, 1986 Garchitorena Jabson Joson Moreover, the decision of conviction was signed by Justices Joson, Garchitorena and Chua while the resolution on the motion for reconsideration was signed by Justices Joson, Garchitorena and Hermosisima. Invoked is the case of Cabigao vs. Saidiganbayan, 17 where this Court held: At the same time, the too frequent rotation of Justices hearing this particular case borders on unfairness. The Sandiganbayan should devise a better system whereby, as much as possible, the

same Justices who hear a case shall be the ones to decide it. The procedure in the Court of Appeals cannot be used as a precedent. Except in some isolated instances provided in Batas Pambansa Blg. 129, the Court of Appeals reviews and decides cases on the basis of the records and does not conduct trials. In reducing temporary changes in its divisions to the barest minimum, the Sandiganbayan also reduces the possibility of one Justice who hears all the witnesses, influencing the findings of the Justices who did not have the same opportunity. In that case, we set aside the decision of the Sandiganbayan and ordered a new trial not solely on the basis of the "too frequent rotation of justices" but also because "in addition to the newlydiscovered evidence, there (were) serious allegations which call(ed) for a more thorough examination." Furthermore, temporary vacancies in a division of a collegiate court are to be expected and unavoidable. The "frequent rotation of Justices" decried by the petitioners was not deliberately done to prejudice them. It must also be noted that there was no categorical statement in Cabigao that "frequent rotation of justices" would result in the nullity of the proceedings. We now proceed to the liabilities of the petitioners. The petitioners submit that their act of requisitioning the items approving and signing documents relative to the transaction and issuing the checks in payment of the items requisitioned were made in good faith to beat the expiry date in the CDCs on June 30, 1975, and allow their utilization before their reversion to the general fund. We agree that the issuance of and signatures on the reports of inspection, certificates of delivery and general vouchers, all before June 30, 1975, prior to the actual delivery of the requisitioned item, were innocent and justified by the emergency nature of the purchase and the need to beat the expiry dates of the CDCs. What we cannot come to terms with, however, is the glaring fact that the winning bidder, Rocen Enterprises, which was represented by Centeno, Robles and Dario, deals only in paper products and printed matter and merely procured the electrical items it supplied to CAA Mactan from UTESCO, one of the losing bidders. This transaction reveals that unwarranted advantage through manifest partiality were accorded Rocen notwithstanding its lack of reputability as a supplier of electrical equipment. Who and what made this possible? A close scrutiny of the circumstances of this case clearly indicates that Jimenez and Sucalit were indeed involved in a scheme violative of the Anti-Graft and Corrupt Practices Act. Dario, Centeno and Robles were CAA Manila employees and were on leave during the period of the questioned transaction. They were seen by prosecution witnesses at Mactan Airport in the company of Jimenez, who admitted he knew the three. Robles and Centeno are incorporators of Rocen Trading, Inc., which was the Rocen Enterprises at the time the transaction was consummated. This was a sole proprietorship registered in the name of Remedios Centeno, wife of Estanislao Centeno, and engaged only in the business of dealing in "paper products and printed matter." When the requisition of the items was made, Sucalit went to Manila pursuant to a travel order issued by Jimenez to canvass prices of the articles. It is not explained why she delivered an advertisement form to Rocen Enterprises, which was a supplier only of paper products and printed matter but not of the needed electrical items. Curiously, Rocen submitted the lowest quotation for the items requisitioned. When the contract was awarded to it, Rocen merely procured the items requisitioned from UTESCO, a losing bidder. Arturo Jimenez, Airport General Manager, had the responsibility, as head of office, to see to it that the purchases mole were from reputable suppliers pursuant to the Unnumbered Presidential

Memorandum dated April 22, 1971. Instead of discharging this responsibility, Jimenez approved the award to Rocen Enterprises, which was represented by Centeno, Robles and Dario. Josefina Sucalit, who was sent by Jimenez to Manila to make a canvass, inexplicably delivered an advertisement for Rocen Enterprises, which was not a reputable supplier of' the needed items. In her Travel Report, she certified that she made a canvass from reputable suppliers. These acts and omissions of Jimenez and Sucalit violated paragraph (a) of Section 3 of R.A. 3019 in relation to the Unnumbered Presidential Memorandum. They were persuaded, induced or influenced, and persuaded, induced or influenced each other, to award the purchase of electrical items to an entity which was not even a supplier of electrical items in disregard of the Presidential Memorandum directing that procurement of supplies by government offices should be from reputable suppliers. Rocen was not a "reputable supplier" as it was dealing only in paper products and printed matter at the time of the transaction in question. Paragraph (e) was likewise violated by Jimenez and Sucalit because, with manifest partiality in the discharge of their official and administrative functions, they gave unwarranted benefits, advantage or preference to Rocen Enterprises. The circumstances of the case are sufficient to establish conspiracy between Jimenez and Sucalit in violating the pertinent provisions of R.A. 3019 adverted to above. Direct evidence is not necessary to prove such conspiracy, for as we held in People vs. Roa: 18 A resort to circumstantial evidence is in the very nature of things, a necessity. Crimes are usually committed in secret and under conditions where concealment is highly probable; and to require direct testimony would in many cases result in freeing criminals and would deny proper protection to society. (20 Am. Jur, 261). We believe, however that Montayre and Villa are not criminally liable. Montayre was convicted as a conspirator for having signed the reports of inspection, certificates of delivery, and general vouchers before delivery of the items requisitioned. As already stated, these were innocent act in view of the emergency nature of the purchase and the need to beat the expiry date of the CDCs. No criminal intent can be imputed to his having made the requisition because the same was necessary. He had no responsibility in determining the reputability of the supplier and did not take part in making the canvass and awarding the purchase to Rocen. Villa was likewise convicted as involved in the conspiracy for having signed invoices, reports of inspection, certificates of delivery and general vouchers before delivery of the items requisitioned. He is absolved of this charge like Montayre, for the same reasons. Villa, moreover, did not take part in the canvassing of supplies. It is true that he was a member of the Bidding Committed and he signed the Abstract of Bids and the approval of the lowest bid to Rocen Enterprises. However, this act cannot be considered criminal as he relied in fact on the canvass made and sealed bids procured by Sucalit in Manila. Such reliance may have constituted negligence but certainly not the gross inexcusable negligence punishable by law. Regarding the offenses involved, the Court finds that only paragraphs (a) and (e) of Section 3, R.A. 3019, in relation to this Unnumbered Presidential Memorandum dated April 22, 1971, were violated. There was no violation of paragraph (h) of R.A. 3019 as proof of financial or pecuniary interest in the transaction on the petitioners' part did not follow from the Sandiganbayan finding that there was overpricing. Paragraph (i) was also not violated because the Bidding Committee did not exercise discretion in the award of the contract for purchase of the equipment, which had to be given to the lowest bidder.

WHEREFORE, the appealed judgment of the Sandiganbayan is AFFIRMED insofar as petitioners Jimenez and Sucalit are concerned. Petitioners Villa and Montayre are hereby ACQUITTED. SO ORDERED.

G.R. No. 136266

August 13, 2001

EUTIQUIO A. PELIGRINO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. PANGANIBAN, J.: To convict the accused in a prosecution for the violation of Section 3(b) of the Anti-Graft Law, mere receipt of a gift or any other benefits is enough, even without any express demand for it. The duration of the possession is not controlling. Important are the appellant's words, action and reactions showing acceptance thereof. These are factual in nature and, absent any arbitrariness, abuse of discretion, or palpable error, the trial court's assessment of their presence or absence is generally binding on appellate review. The Case Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the August 24, 1998 Decision1 and the November 16, 1998 Resolution2 of the Sandiganbayan, First Division, in Criminal Case No. 17086. The dispositive portion of the assailed Decision reads: "WHEREFORE, premises considered judgment is hereby rendered, finding accused EUTIQUIO A. PELIGRINO, GUILTY beyond reasonable doubt, as principal, of having violated Sec. 3(b) of R.A. 3019 as charged, and hereby imposes upon him in the absence of any modifying circumstances affecting criminal liability, an indeterminate prison term of SIX (6) YEARS and ONE (1) MONTH as minimum, to NINE (9) YEARS as maximum, with all the accessories of the law, to suffer perpetual disqualification from office, and to pay the cost. "There is no pronouncement as to civil liability it being apparently clear that the amount of Three Thousand (P3,000.00) used in the entrapment has been returned to the offended party. "Accused ATTY. BUENAVENTURA V. BUENAFE, on the other hand[,] is ACQUITTED on the basis of reasonable doubt, with cost de oficio. "His bond is ordered cancelled and any Hold[-] Departure Order issued in this case is set aside and ordered lifted as to him."3 The assailed Resolution denied the Motion for Reconsideration as follows: "There being no adequate cause to set aside the decision herein, more particularly since the points raised by the accused in his motion for reconsideration dated September 2, 1998 have been adequately taken up in the decision, the said motion for reconsideration is denied."4 This case originated from the Information filed on October 17, 1991 by Special Prosecution Officers Carlos D. Montemayor and Edna Herrera-Batacan. The accusatory portion reads thus: "That on or about October 15, 1991, in Makati, Metro Manila, and within the jurisdiction of this Honorable Court, accused EUTIQUIO PELIGRINO y ALAAN, a public officer being then an

Examiner II of Region IV-A of the Bureau of Internal Revenue, and as such [was] tasked among others, to examine or investigate Books of Accounts for Income and Business [t]ax [r]eturns earned by professionals (medical practitioners) in order to determine their compliance and/or tax deficiencies and to collect payments thereof, while in the performance of his official duties as such public officer, did then and there, willfully, unlawfully and criminally demand the amount of P200,000.00 from Dr. Antonio N. Feliciano, a practicing [g]enetology [d]octor holding office at Pasong Tamo, Makati, Metro Manila, found by the accused to have incurred an allege[d] deficiency income tax assessment of P500,000.00 for the calendar years 1988-1989, received P200,000.00, P51,858.57 was in the form of Prudential Bank Check No. 914077 dated October 15, 1991 payable to the Bureau of Internal Revenue as full payment of Dr. Feliciano's tax liabilities and the remaining balance to be appropriated to himself, to the damage and prejudice of Dr. Antonio Feliciano in the amount of P148,141.43 and the government in the amount equal to the deficiency income tax due it."5 On February 25, 1992, the Information was amended to include Buenaventura V. Buenafe as coaccused. It is reproduced below: "That on or about October 15, 1991 and/or for sometime prior thereto, in Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, accused EUTIQUIO PELIGRINO y ALAAN and BUENAVENTURA V. BUENAFE, both public officers, being then Examiner II and Supervisor respectively both of Region IV-A of the Bureau of Internal Revenue, Makati, Metro Manila, and as such are tasked, among others, to examine or investigate the Books of Accounts for Income and Business Tax and other accounting records of professionals (medical practitioners) and to determine their compliance and/or tax deficiencies after assessment, and to collect payments thereof, taking advantage of their public positions, while in the performance of said official duties as such public officers, conspiring, confederating and mutual helping each other, did then and there wil[l]fully, unlawfully and criminally demand directly from taxpayer Antonio N. Feliciano, a practicing [g]enetology [d]octor holding office at Pasong Tamo, Makati, Metro Manila, found by both accused to have incurred an alleged deficiency income tax assessment of P500,000.00 for the calendar years 1988 and 1989, the amount of P200,000.00 Philippine currency, for the purpose of applying a portion thereof in the amount of P51,858.57 as full payment for deficiency income tax due from said taxpayer for fiscal years 1988 & 1989 and the balance of P148,141.43 to be appropriated by both accused for themselves as gift or consideration for their promise to make as they did lower assessment for said fiscal years 1988 & 1989 in the amount of P51,858.57, which request or demand for money was in connection with a transaction between the government and Dr. Antonio N. Feliciano wherein both accused in their official capacities had to intervene under the law, and thereafter, accused Eutiguio A. Peligrino wil[l]fully, unlawfully and criminally received the amount of P200,000.00 in behalf of both accused, to the damage and prejudice of Dr. Antonio Feliciano in the amount of P148,141.43 and the government in the amount equal to the deficiency income tax due it."6 (Underscoring in the original.) On August 28, 1992, the two accused, assisted by their respective lawyers,7 were arraigned. Both pleaded not guilty.8 On April 24, 1998, after full trial, the Sandiganbayan convicted petitioner of the offense charged, but acquitted his co-accused.1wphi1.nt The Facts Version of the Prosecution The Sandiganbayan narrated the evidence of the prosecution in this wise: "Stripped of the non-essentials, the prosecution's evidence shows that about the last week of July or early August of 1991, accused Atty. Buenafe delivered a letter of authority dated July 4, 1991 (Exhibit K) to complainant Dr. Antonio N. Feliciano in the latter's office at Valgozon Bldg., Pasong Tamo, Makati. Said Exhibit K is addressed to Dr. Antonio [N.] Feliciano signed by one Eufracio D. Santos a [d]eputy [c]ommissioner of the BIR stating inter alia that 'x x x the bearer(s) hereof Revenue Officer Eutiquio Peligrino to be supervised by Buenaventura Buenafe is/are authorized to

examine your books of accounts and other accounting records for income and business for the calendar/fiscal year(s) ending 1988 & 1989 x x x.' Atty. Buenafe was referred to the accountant of the complaining witness. "About two weeks later, the complainant received a telephone call from accused Atty. Buenafe asking him if his accountant had not told him anything, and when he (complainant) inquired from his accountant Ellen Quijano about the matter, he was informed that the accused were demanding half a million pesos. Surprised about the demand, since the books were not even examined, he instructed Ellen Quijano to further clarify the matter. Thereafter about Sept. 1991, Atty. Buenafe called him up requesting for a meeting in his (complainant's) office. "On October 10, 1991 accused Eutiquio Peligrino and Atty. Buenaventura Buenafe appeared in the complainant's office and told the latter that his tax deficiencies would amount to [f]ive [h]undred [t]housand [p]esos (P500,000.00)[.] "Flabbergasted, because his books were not even examined, complainant entertained the idea that it was the beginning of an extortion, and he tried to negotiate for a smaller amount, and finally the two (2) accused agreed to the amount of [t]wo [h]undred [t]housand, of which [f]ifty [t]housand [p]esos would be paid to the BIR, and the rest to them. The pay-off would take place on that coming Monday. He immediately wrote a letter to the NBI (Exhibit A) requesting for assistance, and an NBI Agent Atty. Rafael Ragos, went to his office where they talked and arranged for an entrapment which was set on October 14. At around noon-time of the said date, he provided the NBI with the pay-off money consisting of [t]hree [t]housand (P3,000.00) pesos as the entrapment was scheduled at 4:00 p.m. Prior to this, he had executed an affidavit (Exhibit C). On the said entrapment date, October 14, 1991 neither accused appeared. The complainant further testified: [']Q What happened next after October 14[?]

A We set it for the next day and I told the NBI people that I ha[d] a feeling that they [would] show up the next day and so early on the next morning the NBI came to my office. PJ GARCHITORENA Q A On Monday, how many NBI agents came to your office? About two or three, Your Honor.

PROS. CAOILI Q A Q A Now, at about what time did the NBI c[o]me to your office? They came before noon, sir. And did the accused Atty. Buenafe and Mr. Peligrino appear on that date, October 15, 1991? Atty. Buenafe did not appear but Mr. Peligrino appeared at 4:00 p.m. in my office.

Q When Mr. Peligrino appeared in your office at 4:00 p.m., of October 15, 1991, what transpired? A By this time I was already ready with the planted money in an envelope, brown Manila envelope and the NBI agents were already positioned and we ha[d] a pre-arranged signal that if I buzz[ed] or made a buzzer in the intercom that mean[t] that the money was accepted and they [would] come out and arrest Mr. Peligrino. Q Now, were you able to hand the money to Mr. Peligrino?

A Q

Yes, sir. What did he do when he took hold of the money?

A He accepted the envelope and opened it and look inside and saw the money then close[d] it again and place[d] it in front of him. Q What happened next?

PJ GARCITORENA Q A And after you turned over the envelope to him, you still ha[d] a conversation with him? No, your Honor, I immediately [pressed] the buzzer and then the NBI immediately c[a]me out.

PJ GARCHITORENA Mr. Caoili. PROS. CAOILI Q When the NBI agents came to your room after pressing the button, what happened next?

A There was a commotion, sir, and it happened so fast that I don't remember anymore but they brought him out of my office with an instruction for me to follow. Q A Q A Q Did you understand where to follow[?] Yes, sir, in the NBI office at Taft Avenue. And did you do that Mr. Witness? Yes, sir. Then what happened at the NBI office?

A I was asked to make an affidavit of what happened which I [did] and signed it. (TSN August 12, 1993 pp. 19-21 )['] "Corroborating the declaration of the complaining witness, witness Rafael Z. Ragos an NBI Agent testified that on October 11, 1991 he was handed a letter ([E]xhibit A) by NBI Deputy Director Antonio Aragon with instruction to handle the complaint of the author - Dr. Antonio Feliciano. He then contacted the physician - complainant and requested him to execute an affidavit (Exhibit C). After studying the affidavit, he decided together with other NBI agents to conduct an entrapment operation. Thus, 30 pieces of one-hundred peso bills were secured and submitted to the Forensic Chemist Section for marking. He made arrangement with Dr. Feliciano that on October 14, 1991, he, with the members of his team would standby at the office of the said doctor to conduct the entrapment. Nothing came out of their plan as the two (2) accused did not appear. The following day, he with 8 or 10 NBI agents returned to the office before lunch time and waited for the two (2) suspects. The arrangement was that, the NBI agents would stay in one of the rooms of the clinic, would wait for the signal of the Doctor which [was] the sound of the buzzer, and when the buzzer [was] heard they would proceed to arrest the subject of the operation. "At around 4:30 p.m., accused Peligrino arrived, and so upon hearing the sound of the buzzer, he [Ragos], together with his co-NBI agents immediately proceeded to the room of Dr. Feliciano, and

on seeing the accused in possession of the brown envelope which contained the marked money, arrested him, and made a body search on him. An inventory of the things found in the possession of the accused was made (Exhibit T). The following were seized from accused Peligrino: 1. Prudential Check No. 914077; 2. BIR Authority to Issue Payment Order dated 28 August 1991 with stated amount of P14,092.92; 3. BIR Authority to Issue Payment Order dated 28 August 1991 with stated amount of P23,760.35; 4. BIR Authority to Issue Payment Order dated 28 August 1991 with stated amount of P14,O05.30; 5. Worksheet labeled 'COMMITTEE ON SPECIAL PROJECTS' with [L]ist of Taxpayers [who were] Doctors; 6. 1988 and 1989 [P]rovisional Computation (DR. FELICIANO) Tax Assessment; 7. List of Dr. A. FELICIANO's withheld taxes for 1989; 8. Computation of Dr. FELICIANO['s] 1989 Sales of Clinic Supplies and Number of Patients; 9. Computation of Dr. Feliciano's Number of Patients; 10. BIR Letter of Authority No. 0456962 addressed to Dr. ANTONIO N. FELICIANO; 11. Photocopy of Dr. FELICIANO's 1989 Income Tax Return and its attached Auditor's Report, Balance Sheet, Profit and Loss Statement and Schedule of Salaries and Wages; 12. DR. FELICIANO's 1989 Confirmation Receipts; 13. Photocopy of Dr. FELICIANO's 1988 Income Tax Return and its attachments; 14. DR. FELICIANO's Worksheet for 1989 transactions; 15. DR. FELICIANO's Worksheet for 1988 transactions; 16. Big-brown envelope containing the Bogus Money with (30) pcs. of marked One Hundred [Peso b]ills. "The accused was then brought to the NBI Office in Manila where he was examined for the detection of the fluorescent powder [o]n his hands and body. He then prepared his report (Exhibit Q) after the complainant executed a written statement. "NBI agent Raul A. Ancheta also took the witness stand and declared that on October 14, 1991 Agent Ragos assigned him to get the statement of Dr. Feliciano, after which he was instructed to prepare 'boodle' money to be submitted to the Forensic Chemist Division of the NBI in preparation for the entrapment. Accordingly, with thirty (30) pieces of genuine money, he submitted the same to the Forensic Chemist for dustings and proper markings. He was present in the initial process of dusting the articles with fluorescent powder but did not witness the entire proceedings. He thereafter retrieved the money from the Forensic Chemist, placed it in an envelope, and delivered the same to Agent Ragos. "[O]n the morning of October 14, Agent Ragos called all the members of the entrapment team and made the necessary briefings. They, thereafter proceeded to the office of Dr. Feliciano, and waited for the accused but nobody appeared, and Agent Ragos instructed the members of the team to be on the stand by status the following day.

"The next day, October 15, the NBI agents posted themselves at the different parts of the clinic and waited for the BIR examiners. His [Agent Rago's] assignment was [at] the main door of the clinic to secure the team members from outside forces. By 4:00 p.m., only accused Eutiquio Peligrino arrived. He saw him enter the clinic, [go] directly to the secretary who picked up the phone, and then he saw Dr. Feliciano going out of the room and conferr[ing] with the accused. Thereafter, they entered the room of Dr. Feliciano. About 15 to 20 minutes, he saw the other members of the team rushing to the office of the doctor, and after a short while, they came out from the office with accused Peligrino. Agent Ragos handed him the brown envelope and the blue bag of the accused, and then they proceeded to the NBI office where he brought the accused to the Office of the Forensic Chemist who examined him upon presentation of the request (Exhibit E-l). After the examination, he was given a certification by the Forensic Chemist (Exhibit E). "Dimpna Dacudao Bermejo, a Forensic Chemist of the NBI declared: [']Q A Q A Q Miss Witness, do you remember whether you were in your office on October 15, 1991? Yes, sir. Did you give any technical assistance during that date? Yes, sir. What kind of technical assistance did you give on that date?

A [At] 5:00 of October 15, a certain agent Raul Ancheta came to my laboratory with a letter request asking for a detection of fluorescent powder [on] a person. xxx xxx xxx

PROS. CAOILI May I request, Your Honor, that this letter request for Chemistry examination, disposition form dated October 15, 1991 be marked as Exhibit E-1[.] xxx Q xxx xxx

What did you do upon getting this request for examination Miss Witness?

A I examined the letter request whether the contents [were] in order, then I asked him to bring the subject in my presence and I right away proceeded to my examination. Q A Q A xxx Are you familiar with the subject? Yes, sir. If he is in this Court, will you be able to identify him? Yes, sir. xxx xxx

(Witness pointing to a person in Court who when asked gave his name as Mr. Eutiquio Peligrino.) Q How did you conduct the examination?

A I brought the person [to] our dark room and then I exposed his left and right arms[,] palm[a]r aspect[,] under the UV light. PJ GARCHITORENA Q A What is UV light? Ultra-Violet light.

PROS. CAOILI Q A Q A What [were] your findings? The said Peligrino was found to be positive [for] the presence of fluorescent powder. Did you [put] your findings in writing? Yes, sir.

Q There is already here a certification which is already marked as Exhibit E signed by one Dimpna Bermejo. Will you please go over the same and tell me if you know this document? A xxx Yes, I was the one who made that document. xxx xxx

Q It states here that this is only a temporary certification and [the] official report follows. Did you make that official report? A Q Yes, sir. Where is it now?

A Witness presenting a document to the Fiscal which is entitled Physics Report Number P-91140 dated 17 October 1991. Q On this report, there is a signature above the typewritten name Dimpna Bermejo[;] whose signature is that? A My signature, sir.

PROS. CAOILI May I request your Honor, that this Physics Report No. P91-140 be marked as Exhibit E-2. Q Aside from your report, did you prepare any diagnosis showing where you found this fluorescent powder in the person of Mr. Peligrino? A xxx Yes, sir. xxx xxx

PROS. CAOILI Your Honor, may I request that these two (2) diagnos[e]s presented by the witness be marked as Exhibit E-3 for [the] dorsal portion and Exhibit E-4 for the palm[a]r side.

xxx

xxx

xxx

Q There is a note written in pencil in Exhibit E-3, [on] the bottom portion. Will you please explain to the Honorable Court what is that note? A That note states that subject was found to have fluorescent powder [o]n the front shirt, pants and right arm. xxx Q A Q A xxx xxx

Miss Witness, whose hands are those which were examined supposed to [be]? [They] belonged to the subject Peligrino. How about the palm[a]r section, does it also belong to the subject Eutiquio Peligrino? Yes, sir.[']

"The records disclose that the prosecution presented documentary evidence consisting of Exhibit A which is a letter-complaint dated 10/11/91 of the complaining witness addressed to Director Alfredo Lim of the NBI[;] Exhibit Ban NBI routine slip emanating from Asst. Director Aragon; two (2) sworn statements of Dr. Feliciano marked as Exhibit[s] C and D which were all offered as part of the testimony of the said doctor; Exhibit E which is a certification dated October 15, 1991 by the NBI Forensic Chemist Dimpna Bermejo together with her Physics Report No. P91-140 (Exhibit E-2); all offered as part of the declaration of witness Bermejo; Exhibit F - xerox copy of the genuine thirty P100 bill[;] three authorities to issue payment order (Exhibits H, I & J); a letter of authority issued by BIR Director Viray (Exhibit K); Exhibit L which is the Joint Affidavit of Arrest of NBI Agents; Exhibits M and N[,] the booking sheet and Arrest Report and Arrest Information Sheet respectively for accused Peligrino; Exhibits O and P[,] the booking sheet & Arrest Report and Arrest Information Sheet respectively for accused Buenafe; Exhibit Q[;] the Report of the Arresting NBI Agents regarding the entrapment; Exhibit R which [consists of] some notes of Dr. Feliciano; Exhibit S which is a letter dated 11/26/92 of BIR Deputy Commissioner Santos to Dr. Feliciano; Exhibit T[,] the inventory/list of documents seized from accused Peligrino[;] and [Exhibit] U[,] the referral letter of Director Alfredo Lim of the NBI to the Ombudsman. These exhibits were admitted as part of the testimonies of the witnesses who testified thereon."9 Version of the Defense Inasmuch as petitioner did not submit his version of the facts, we quote the Sandiganbayan's narration of the defense evidence as follows: "The defense was abject denial. Stoutly asserting their innocence, and abjuring the inculpation with vehemence, both accused took the witness stand, and presented Prosecutor Carlos Montemayor of the Office of the Special Prosecutor to drive [home] their point. They also submitted as documentary evidence Exhibits 1 to 21 which were admitted by the Court in its Resolution of October 28, 1994. "The testimony of accused Buenaventura V. Buenafe may be capsulized as follows: 'That he is 59 years old, married and a Revenue Officer IV with designation of Supervisor in the Bureau of Internal Revenue; that he first came to know Dr. Feliciano when he served a letter of authority for the examination of the 1988-89 books of account of the doctor to establish his tax liability; that said letter of authority was issued by the [d]eputy [c]ommissioner of [i]nternal [r]evenue (Exhibit 9) which has a [life-time] of 30 days within which to be served and since Examiner Eutiquio Peligrino was on leave he took it upon himself to serve the same personally on the doctor at the

latter's office; that since the letter of authority came about pursuant to a letter of denunciation of the doctor-complainant, he was checking on the veracity of the said letter of denunciation and except for the item in the said letter of denunciation about his ownership of ten (10) cars as the doctor said he ha[d] only three expensive cars [but] he was able to confirm that the subject [was] living in Forbes Park, ha[d] been treating more than thirty (30) patients a day, ha[d] a share in Puerto Azul, ha[d] an island off Atimonan, and ha[d] many househelps; that he charged P200.00 per consultation from low income patients but with respect to foreigners he asked for a package-deal $1000 for consultation, laboratory examination, etc. After the interview, he was told by the complainant that the latter's accountant would be coming to his office later on, and true to form, one Elen Quijencio representing herself as accountant of the doctor, came to his office, bringing some papers but not the book of accounts. He referred him to his co-accused Eutiquio Peligrino, and after their examination, he found out that instead of the reported income of [o]ne [m]illion [pesos] (P1,000,000.00) a year the doctor [should] have reported [t]hree [m]illion pesos (P3,000,000.00) per year. He told the accountant of his computation who retorted that she would inform the doctor of the same. About the end of August 1991, the accountant called him in his office and relayed the information that the doctor [was] amenable to pay fifty thousand ([P]50,000.00) pesos more or less, and so he consulted his superior and assessing that it was reasonable, [an] authority to issue payment order (ATIPO) was prepared. (Exhibits H, K and J also Exhibits 10, 10-A & 10-B respectively). The aggregate amount to be paid by the complainant including surcharges, interest and compromises as appearing in the three ATIPO [was] P51,858.57. 'On October 10, 1991 upon invitation of the complainant, he and co-accused went to the former's office bringing with them the ATIPO's in anticipation of the payment, but the complainant requested xxx postponement of the payment, and told them to come back the following day; the next day, the complainant-doctor pleaded again for postponement. He then left the ATIPO [with] his co-accused Peligrino. 'On October 16, thirty minutes after arrival in his office, he was called by the new [d]irector at the latter's office where an NBI agent was waiting. He was then invited to the NBI office to identify the papers or documents seized from Mr. Peligrino. At the NBI Office, he was informed that he was the mastermind of the extortion aborted by the entrapment laid by the NBI and the complainant on Mr. Peligrino, and when he denied the same, he was brought before Prosecutor Carlos Montemayor in the Office of the Ombudsman where he saw the NBI Agent presenting the boodle money, and where he was told by the Prosecutor to go home when the NBI agent could not answer the Prosecutor's question why he (Buenafe) was there.' "On the other hand, accused Eutiquio A. Peligrino, 51 years old, married and a BIR examiner made the following declaration: 'That he ha[d] been a BIR examiner for thirteen (13) years, and sometime in June or July 1991 he was assigned as examiner at Revenue District 22, Manila and at the same time one of the members of the Special Project Committee supervised by his co-accused; that he came to know Dr. Feliciano in the early part of July 1991 when he was assigned to examine the latter's books of accounts, that when the accountant of the said doctor went to his office she brought only the working sheets, list of employees and some of the withholding taxes, and not the most vital document which [was] the books of accounts[;] nonetheless he made a preliminary assessment based on the information given by his superior co-accused Buenafe; that when the accountant [came] back, he told her that if she want[ed] to make a compromise she [could] talk to his superior. 'On October 10, 1991 co-accused Buenafe told him that they had to go to the clinic of Dr. Feiiciano in order to present the [A]uthority to [I]ssue Payment Order. They were entertained by the Doctor who told him that the check for the payment was not yet prepared, and requested them to return the following day. Again when they went there the next day, the Doctor informed them the check

[was] not yet ready since he was very busy. 'On October 15, 1991 while in his Manila District Office 22, co-accused Buenafe gave him three (3) copies of [A]uthority to [I]ssue [P]ayment [O]rder and instructed him to deliver the same to Dr. Feliciano, and get the check if it is already prepared. He arrived at the Office of the Doctor at around 4:00 to 4:30 p.m. and went directly to the reception hall where he told the receptionist that his purpose in going there [was] to inform the Doctor of the due date of the ATIPO, and to pick up the check if it [was] already ready. 'He was allowed to enter the clinic where he gave the Doctor the copies of ATIPO. The Doctor asked the whereabouts of Atty. Buenafe and requested the copies of the ATIPO for xeroxing. While waiting for the ATIPO to be xeroxed, Dr. Feliciano asked him if he would accept payment in cash to which he said No and he would accept only check payable to the BIR. Thereafter, the Doctor took a brown envelope from his drawer, threw it in front of him and said 'yan ang bayad.' The envelope landed close to his arms and so he pushed it asking: 'What is that sir? My purpose in coming here is to get the check in payment for the BIR'. Instead of answering him, the Doctor stood up and told him he [was] going to get the xerox copy of the ATIPO. 'The Doctor returned followed by two (2) persons one of whom grabbed his hands from behind while the other standing behind him wanted him to hold the envelope but he resisted[,] placing his hands against his chest, and since the two men realized he [could] not be forced to hold the envelope, they let him go, picked the envelope and pressed it against his breast. 'He was brought to the NBI office where in one room, a chemist examined him to detect the presence of fluorescent powder. During the examination, he asked the chemist which of his hand[s was] contaminated and the chemist answered 'none'. Then, she looked up to the escort behind him, and after that, started examining his hands, shirt and pants, and then began encircling portions on the diagram in front of her. Then he was fingerprinted. 'The following day, October 16, 1991 his co-accused arrived and they were brought before Fiscal Montemayor of the Ombudsman who asked the NBI why the envelope supposedly containing the money was still sealed. He [could] not remember how the NBI agents replied, but Fiscal Montemayor let go [of] his co-accused while he was asked to post bail.' "The defense also presented Carlos Montemayor, 59 years old, married and a Special Prosecutor III in the Office of the Special Prosecutor, Ombudsman[,] who testified as follows: [']Q Mr. Witness, can you tell us whether a big brown envelope was presented to you by the NBI during the inquest preliminary investigation? A I can not exactly remember if there was an envelope submitted by the NBI during the inquest investigation. What I remember having x x x seen and [having been] presented by the NBI [were the] xeroxed copy of the marked money and several affidavits. Q You mentioned that what [were] presented were only xeroxed copies of the marked money. Did you see the original of the marked money? A I am not sure whether it was presented to me or not.

Q How about the diagram of the hands of the alleged persons [and] the presence of fluorescent powder, can you tell if you have seen them on that day? A No, what was presented .to me was the Forensic Chemistry Report.[']

"Answering the queries of the Court, he declared:

[']PJ GARCHITORENA Q Mr. Montemayor, at that time that you were conducting the inquest examination[,] was the accused Peligrino presented to you? A Q Yes, your Honor. Did you ask him any question?

A Well, my companions asked [him] questions x x x because we were three who conducted the inquest examination. xxx xxx xxx

Q Was there any question addressed by the panel to Mr. Peligrino at the time with respect to the evidence? A xxx Q A Yes, your Honor. xxx xxx

Was Mr. Peligrino asked about the entrapment itself? I believe so.

Q Was he confronted in some way with the findings of the NBI with regard to the forensic powder? A Q A Q A I can not remember anymore, sir. Was the Forensic Report of the NBI presented [in] his presence? Yes, sir. Did he protest in anyway the process by which the forensic examination was conducted? No, because he waived the right to preliminary investigation.

Q Be that as it may, did he in any way [protest] the proceedings or [protest] that the forensic examination was irregular or otherwise... A Q A Q A Q A Q No protest whatsoever. Was he confronted with any statement? He was confronted with the testimony or allegations of Dr. Feliciano[.] Did he make any comment? He denied [them]. Was the denial general or specific? General. He denied any attempt to extort money from Dr. Feliciano?

A Q A Q A xxx Q A Q A Q A

Yes, Your Honor. Did he make any protest [or] misbehavior by the NBI? No, sir. Did you see him under [some] kind of fear or stress about the NBI? Did he feel afraid? I have not noticed any unusual appearance of the accused Peligrino, Your Honor. xxx xxx

And in this particular case Mr. Peligrino was calm and apparently not at all unsettled? Yes, Your Honor. He was calm in other words? Yes, Your Honor. And in his calm condition he did not say the NBI maltreated him? No, Your Honor.

Q Or that the entrapment or any of the proceedings were conducted in any manner different from what the NBI should do? A He did not protest.[']

"The documentary evidence adduced by the defense consist[s] of Exhibits 1 and 2, [which are] the affidavits of accused Buenafe dated Nov. 7 and December 18, 1991 respectively; Exhibits 3 and 4, which are the affidavits of Felicidad Viray[,] then Regional Director of the B1R and that of Antonio Panuncialman[,] then [c]oordinator of the Special Project Committee of the BIR; Exhibits 5 and 6, the certifications of BIR Revenue District Officer Mamerto Silang, Cruz[;] and Exhibit 7 the affidavit of one Roselyn Dy all tending to show the efficiency of accused Buenafe as a BIR employee. To prove the extent of Dr. Feliciano's practice, Exhibits 8 and 8-a consisting of [a] letter of some 'concerned doctors 0B-Gyne," and a brochure were presented. The letters of authority already marked as Exhibits K, H, J & I were adopted by the defense as Exhibits 9, 10, 10-A & 10-B[;] while Exhibits M, N, 0, & P of the prosecution were adduced by the accused as their Exhibits 11 , 11-A, 12 and 12-A. Exhibit 13 is the Counter-affidavit of accused Peligrino while Exhibits 14 is a copy of a Memorandum for Hon. Mauro Castro[,] the Provincial Prosecutor of Rizal[; Exhibit] 14-a is a copy of an information charging Dr. Feliciano [with] the crime of Simple Slander, [Exhibit] 14-B is another information also charging the doctor [with] Simple Slander[;] Exhibit 15 is another Memorandum for Provincial Fiscal Mauro Castro recommending dismissal of the charges of Falsification of Private Document and Use of Falsified document against Dr. Feliciano[; Exhibit]15-A is a copy of another Memorandum for Provincial Fiscal Mauro Castro recommending dismissal of the three charges for perjury against the doctor[;] Exhibit 16 is another Memorandum for dismissal of the charge of perjury against the complainant-doctor[;] while Exhibit 17 is a certification by the Office of the Provincial Prosecutor of Rizal certifying the filing of five (5) criminal charges against the doctor[;] Exhibit 18 is a copy of the complaint (civil case) of the doctor against his own children - Dr. Antonio Feliciano Jr. and Ma. Isabel Feliciano -all these Exhibits (14 to 18 inclusive) were submitted to show that complainant [was] a very troublesome person. [The a]ccused also presented Exhibits 19, 20 and 21 [which are a] certification of the Dismissal of the Administrative case filed by Dr. Feliciano against accused Buenafe, as well as [a] certification anent his semestral accomplishment, and a letter of the Metropolitan Hospital Administrator to xxx BIR [C]ommissioner Ong commending

Buenafe respectively. "While Exhibits 1 to 21 were admitted by the Court in its Minute Resolution of October 28, 1994 there was nothing said of Exhibits 22 and 23 but considering that they were annexes to the Joint Stipulation of Facts, the Court is constrained to consider them even if virtually they were not the object of a formal offer. Exhibit 22 is Revenue Special Order No. 30-91 dated April 2, 1991 signed by BIR Com. Jose Ong appointing Antonio Panuncialman and Buenaventura Buenafe as Head & Team Leader respectively of the Committee on Special Projects, Revenue Region 4-A Manila, while Exhibit 23 is the same as Exhibit 21."10 Ruling of the Sandiganbayan In its well-written 40-page Decision, the Sandiganbayan ruled that all the elements of the offense described in Section 3, paragraph (b) of Republic Act 3019 (Anti-Graft and Corrupt Practices Act),11 had been proven. Being a public officer, specifically an examiner of the BIR, Peligrino had the right to intervene in the subject transaction. He was a member of the Special Project Committee tasked to verify the tax liabilities of professionals, particularly physicians, within the jurisdiction of Revenue Region No. 4-A, Manila. Based on the testimony of private complainant, the NBI agents' entrapment scheme, and the positive results of the chemical examination done on petitioner, the latter was found by the antigraft court to have demanded and received money for his personal benefit in connection with private complainant's tax liabilities. After noting that they had no improper motive to testify against petitioner, the court a quo accorded full faith and credence to the testimonies of the NBI agents and the complaining witness. As regards Buenafe, however, the Sandiganbayan held that there was no sufficient proof that he had conspired with petitioner: "[A]ll told, as to this accused, there were whispers of doubt anent his culpability, which the prosecution despite its commendable efforts, has failed to still. Such doubt must set him free."12 Hence, this Petition by Peligrino. Issues In his Memorandum, petitioner raises the following issues: "I. That the Sandiganbayan erred in finding that petitioner demanded and received the envelope with the boodle money; "II. That the Sandiganbayan erred in convicting the petitioner on the basis of the lone testimony of Dr. Feliciano an admittedly discredited witness; "III. That petitioner was denied his right to equal protection of the law."13 This Court's Ruling The Petition14 has no merit. First Issue: Demand and Receipt of "Boodle Money" Section 3(b) of the Anti-Graft and Corrupt Practices Act (RA 3019, as amended) provides:

"SEC. 3. Corrupt practices of public officers. -- In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: xxx xxx xxx

"(b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other party, wherein the public officer in his official capacity has to intervene under the law. xxx xxx x x x.

The elements of this offense were summed up in Mejia v. Pamaran,15 and we restate them here: (1) the offender is a public officer (2) who requested or received a gift, a present, a share, a percentage, or a benefit (3) on behalf of the offender or any other person (4) in connection with a contract or transaction with the government (5) in which the public officer, in .an official capacity under the law, has the right to intervene. Petitioner is a BIR examiner assigned to the Special Project Committee tasked "x x x to undertake verification of tax liabilities of various professionals particularly doctors within the jurisdiction of Revenue Region No. 4-A, Manila x x x." Since the subject transaction involved the reassessment of taxes due from private complainant, the right of petitioner to intervene in his official capacity is undisputed. Therefore, elements (1), (4) and (5) of the offense are present. However, petitioner disputes the prosecution evidence establishing that he demanded and received grease money in connection with the transaction. Specifically, he contends that the Sandiganbayan's conclusion that he demanded money from complainant was based merely on an assumption that was not supported by any evidence. He avers that he merely informed complainant of his tax deficiencies, and that it was the latter who requested the reduction of the amount claimed. We are not convinced. Section 3(b) of RA 3019 penalizes three distinct acts -- (1) demanding or requesting; (2) receiving; or (3) demanding, requesting and receiving -- any gift, present, share, percentage, or benefit for oneself or for any other person, in connection with any contract or transaction between the government and any other party, wherein a public officer in an official capacity has to intervene under the law. These modes of committing the offense are distinct and different from each other. Proof of the existence of any of them suffices to warrant conviction.16 The lack of demand is immaterial. After all, Section 3 (b) of RA 3019 uses the word or between requesting and receiving. Averring that the incident in complainant's clinic was a frame-up, petitioner contends that there could not have been any payoff, inasmuch as there was no demand. Like bribery, this crime is usually proved by evidence acquired during an entrapment, as the giver or briber is usually the only one who can provide direct evidence of the commission of this crime. Thus, entrapment is resorted to in order to apprehend a public officer while in the act of obtaining undue benefits.17 However, we have to distinguish between entrapment and instigation. In "instigation," officers of the law or their agents incite, induce, instigate or lure the accused into committing an offense, which the latter otherwise would not commit and has no intention of committing. In "entrapment," the criminal intent or design to commit the offense charged originates in the mind of the accused, and the law enforcement officials merely facilitate the commission of the crime.18

Frame-up, like alibi, is invariably viewed with disfavor because, as a line of defense in most criminal prosecutions of this nature, it is easily concocted, common or standard.19 Petitioner denies that he received payoff money from complainant. According to him, receive, as contemplated in the offense charged, connotes a voluntary act coupled with knowledge. Hence, where the giving of the money affords the accused no opportunity either to refuse or to return it to the giver, no punishable offense ensues.20 Petitioner claims that the 40 seconds or less that the boodle money was in his hands was merely a momentary possession that could not prove "receipt," which the law requires for the offense charged to be consummated. We disagree. In Cabrera v. Pajares, acceptance was established because the accused judge placed the bribe money between the pages of his diary or appointment book, despite his protestations that the money bills landed on the open pages of his diary, only after he had flung them back to the complainant.21 In Formilleza v. Sandiganbayan,22 this Court overruled the finding of acceptance, because it was improbable for the accused to accept bribe money in front of her office mates and in a public place, even if the money had been handed to her under the table. Furthermore, the accused therein shouted at the complainant, "What are you trying to do to me?" That is not the normal reaction of one with a guilty conscience. Furthermore, the Court held in the said case that there must be a clear intention on the part of the public officer to take the gift so offered and consider it as his or her own property from then on. Mere physical receipt unaccompanied by any other sign, circumstance or act to show acceptance is not sufficient to lead the court to conclude that the crime has been committed. To hold otherwise would encourage unscrupulous individuals to frame up public officers by simply putting within their physical custody some gift, money or other property.23 The duration of the possession is not the controlling element in determining receipt or acceptance. In the case at bar, petitioner opened the envelope containing the boodle money, looked inside, closed it and placed the envelope beside him on the table. Such reaction did not signify refusal or resistance to bribery, especially considering that he was not supposed to accept any cash from the taxpayer. The proximity of the envelope relative to petitioner, as testified to by NBI Agent Ragos, also belies petitioner's contention that he refused the bribe. A person found in possession of a thing taken from the recent execution of a wrongful act is presumed to be both the taker and the doer of the whole act.24 Second Issue: Credibility of Complaining Witness Petitioner faults the Sandiganbayan with inconsistency. Supposedly, while stating on the one hand that complainant was not a credible witness on account of his character, on the other hand it accorded credibility to his testimony that petitioner had received the boodle money. Likewise, petitioner adds, the same court found complainant's testimony insufficient to establish Buenafe's complicity, yet deemed the same testimony sufficient to prove petitioner's guilt. The Sandiganbayan findings adverted to are as follows: "While the Court is reluctant to consider this declaration of the offended party as satisfactory proof that the accused [therein petitioner] requested or demanded x x x the sum of P200,000 not only because it was vehemently denied by the accused but likewise considering the nature and character x x x [or] person of the said offended party (Exhibit 14 to 18), we are at a loss why in the ensuing event, particularly in the entrapment laid out by the complainant and the NBI agents, this accused was present and x x x a brown envelop[e] containing the 'boodle money' was retrieved [from him]. x x x."25

Obviously, the anti-graft court did not tag complainant as a discredited witness. It simply said that his testimony by itself was not sufficient evidence of the commission of the offense. But, taken together with the other pieces of corroborating evidence, it established a quantum of evidence strong enough to convict petitioner. While the case is weakened by the many suits filed for and against complainant, the court a quo did not say that he was not at all worthy of belief. We see no cause to fault the lower court. The assessment of the credibility of a witness is primarily the function of a trial court, which had the benefit of observing firsthand the demeanor or deportment of the witness. It is well-settled that this Court will not reverse the trial court's assessment of the credibility of witnesses in the absence of arbitrariness, abuse of discretion or palpable error.26 It is within the discretion of the Sandiganbayan to weigh the evidence presented by the parties, as well as to accord full faith to those it regards as credible and reject those it considers perjurious or fabricated.27 Petitioner further contends that he tested positive for fluorescent powder because the NBI agents had pressed the envelope to his body. We are not persuaded. Petitioner failed to ascribe to the NBI agents any ill motive to deliberately implicate him. No malice was imputed, either, to the chemist who had examined and found him positive for the chemical; thus, we see no cogent reason to disbelieve her testimony. In the absence of any controverting evidence, the testimonies of public officers are given full faith and credence, as they are presumed to have acted in the regular performance of their official duties.28 Third Issue: Right of the Accused to the Equal Protection of the Law Petitioner asserts that he should be accorded the same treatment and, thus, acquitted because of his right to the equal protection of the law. After all, the Sandiganbayan believed the testimony of Buenafe that the latter had not asked for any payoff money; and he was, thus, cleared of the charge against him. We disagree. Petitioner alludes to the doctrine that if the conviction of the accused rests upon the same evidence used to convict the co-accused, the acquittal of the former should benefit the latter.29 Such doctrine does not apply to this case. The strongest pieces of evidence against petitioner were the ones obtained from the entrapment, in which Buenafe was not involved. Hence, the evidence against petitioner and that against his co-accused were simply not at par with each other. All in all, petitioner failed to show that Sandiganbayan had committed any reversible error. Quite the contrary, it had acted judiciously and correctly. Hence, this recourse must fail. WHEREFORE, the Petition is DENIED, and the assailed Decision and Resolution AFFIRMED. Costs against petitioner.1wphi1.nt SO ORDERED. Melo, Vitug, Gonzaga-Reyes, Sandoval-Gutierrez, JJ., concur.

G.R. Nos. 146368-69

October 23, 2003

MADELEINE MENDOZA-ONG, petitioner, vs. HON. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents. RESOLUTION QUISUMBING, J.: This special civil action for certiorari assails Sandiganbayan Resolution1 dated May 8, 2000, denying petitioners Motion to Quash2 the Information in Criminal Case No. 23848, for violation of Section 3(c) of R.A. No. 3019,3 as amended. Petitioner also impugns said courts Resolution4 dated November 9, 2000, denying her Motion for Reconsideration. The facts of the case, as culled from the records, are as follows: Sometime in February 1993, the Sangguniang Bayan of Laoang, Northern Samar, passed Resolution No. 93-132,5 authorizing the municipality to borrow heavy equipment from the Philippine Armys 53rd Engineering Battalion, to be utilized in the improvement of Laoangs Bus Terminal. Resolution No. 93-132 likewise mandated the municipal government to shoulder the expenses for fuel, oil, and the subsistence allowances of the heavy equipment operators for the duration of the project. Allegedly, however, the borrowed Army equipment was diverted by the petitioner, who was then the town mayor6 of Laoang, to develop some of her private properties in Rawis, Laoang, Northern Samar. A concerned citizen and ex-member of the Sangguniang Bayan of Laoang, Juanito G. Poso, Sr., filed a complaint against petitioner and nine (9) other municipal officers7 with the Office of the Ombudsman (OMB), Visayas, for violation of the Anti-Graft and Corrupt Practices Act. Acting on the complaint, Graft Investigation Officer Alfonso S. Sarmiento of the OMB ordered herein petitioner and her co-accused to submit their respective counter-affidavits and other controverting evidence. Thereafter, in a Resolution8 dated August 16, 1995, investigator Sarmiento recommended the filing of the appropriate criminal action against petitioner for violation of Sections 3(c) and (e) of R.A. 3019, as amended.9 Despite strenuous opposition and objections by the defense, on August 1, 1997, two informations were filed against her at the Sandiganbayan docketed as Criminal Cases Nos. 23847 and 23848, to wit: (1) Criminal Case No. 23847 That on or about 15 February 1993, or sometime thereafter, in the Municipality of Laoang, Northern Samar, Philippines, and within the jurisdiction of this Honorable Court, accused Madeleine Mendoza-Ong, a public officer, being then the Municipal Mayor of Laoang, committing the crime herein charged in relation to, while in the performance and taking advantage of her official functions, did then and there willfully, unlawfully and criminally, through manifest partiality and evident bad faith, cause undue injury to the Government and give unwarranted benefits, advantage or preference to herself and spouses Mr. and Mrs. Chupo Lao when she, in the discharge of her official or administrative functions, caused the improvement or development of her private land in Barangay Rawis through the use of the equipment and resources of the Philippine Army, to the damage and prejudice of the Government. CONTRARY TO LAW.10 This, however, was amended on October 27, 1998, so that Criminal Case No. 23847 would read as follows:

That on or about 15 February 1993, or sometime thereafter, in the Municipality of Laoang, Northern Samar, Philippines, and within the jurisdiction of this Honorable Court, accused Madeleine Mendoza-Ong, a public officer, being then the Municipal Mayor of Laoang, committing the crime herein charged in relation to, while in the performance and taking advantage of her official functions, did then and there willfully, unlawfully and criminally, through manifest partiality and evident bad faith, cause undue injury to the Government and give unwarranted benefits, advantage or preference to her husband, Hector Ong, herself, and/or her family and to spouses Mr. and Mrs. Chupo Lao when she, in the discharge of her official or administrative functions, caused the improvement or development of a private land owned by her husband, Hector Ong, herself and/or her family in Barangay Rawis through the use of the equipment and resources of the Philippine Army, to the damage and prejudice of the Government. CONTRARY TO LAW.11 (2) Criminal Case No. 23848 That on or about 15 February 1993, or sometime thereafter, in the Municipality of Laoang, Northern Samar, Philippines, and within the jurisdiction of this Honorable Court, accused Madeleine Mendoza-Ong, a public officer, being then the Municipal Mayor of Laoang, committing the crime herein charged in relation to, while in the performance and taking advantage of her official functions, did then and there willfully, unlawfully and criminally, request or receive, directly or indirectly, a gift, present or other pecuniary or material benefit in the form of five (5) drums of diesel fuel, for herself or for another from the spouses Mr. and Mrs. Chupo Lao, persons for whom accused Mendoza-Ong, in any manner or capacity, has secured or obtained, or will secure or obtain, any Municipal Government permit or license anent the operation of the bus company, JB Lines, owned by the aforenamed spouses, in consideration for the help given or to be given by the accused. CONTRARY TO LAW.12 On September 15, 1999, petitioner filed a Motion to Quash with the Sandiganbayan alleging in the main that: (1) the informations especially in Criminal Case No. 23848, failed to allege facts constituting an offense; (2) that the officer who filed the information has no authority to do so; and (3) that the accused was deprived of her right to due process and to the speedy disposition of cases against her. On May 8, 2000, the Sandiganbayan denied petitioners Motion to Quash.1awphi1.nt Petitioner duly moved for reconsideration but this was likewise denied by the Sandiganbayan in its order dated November 9, 2000. Hence, the instant petition with assigned errors faulting respondent court as follows: I. RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN IT FAILED TO DISMISS THE INFORMATIONS FILED AGAINST PETITIONER WHICH CLEARLY DO NOT ALLEGE SUFFICIENT FACTS CONSTITUTING THE OFFENSE HENCE FAILING TO ALLEGE A PRIMA FACIE CASE AGAINST PETITIONER, ACCUSED THEREIN. II. RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION WHEN IT DENIED PETITIONERS MOTION TO QUASH THE INFORMATIONS FILED BY AN OFFICER WHO HAS NO AUTHORITY TO DO SO AND DESPITE THE FACT THAT THE HEAD OF THE PROSECUTION DIVISION OF RESPONDENT COURT HAD RECOMMENDED THE DISMISSAL OF SAID CASES. III. RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION WHEN IT

REFUSED TO DISMISS THE INFORMATIONS AGAINST ACCUSED WHO HAD BEEN DEPRIVED OF DUE PROCESS AND SPEEDY DETERMINATION OF THE CASE IN CLEAR DISREGARD OF THIS HONORABLE COURTS RULINGS THAT INORDINATE DELAY IN THE CONDUCT OF PRELIMINARY INVESTIGATIONS WOULD WARRANT DISMISSAL OF THE CASE.13 Simply put, we find that the sole issue for resolution now is whether the Sandiganbayan gravely erred or gravely abused its discretion in denying the Motion to Quash filed by petitioner, particularly on the ground that the information in Criminal Case No. 23848 does not constitute an offense. The other assigned errors are, in our view, without sufficient merit and deserve no further consideration. Petitioner claims that in a criminal prosecution for violation of Section 3(c) of R.A. 3019 as amended, the law requires that the gift received should be "manifestly excessive" as defined by Section 2(c) of the same Act. She adds that it is imperative to specify the exact value of the five drums of diesel fuel allegedly received by Mayor Ong as public officer to determine whether such is "manifestly excessive" under the circumstances.14 The fundamental test of the viability of a motion to quash on the ground that the facts averred in the information do not amount to an offense is whether the facts alleged would establish the essential elements of the crime as defined by law. In this examination, matters aliunde are not considered.15 Petitioner is charged specifically with violation of Section 3(c) of Republic Act No. 3019, as amended. The pertinent portions of said law provide: SEC. 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: (c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or material benefit, for himself or for another, from any person for whom the public officer, in any manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the help given or to be given, without prejudice to Section thirteen of this Act. Based on the foregoing, the elements of the offense charged in the assailed information are as follows: (1) the offender is a public officer; (2) he has secured or obtained, or would secure or obtain, for a person any government permit or license; (3) he directly or indirectly requested or received from said person any gift, present or other pecuniary or material benefit for himself or for another; and (4) he requested or received the gift, present or other pecuniary or material benefit in consideration for help given or to be given.16 In the instant case, we find that the information in Crim. Case No. 23848 alleged that: (1) accused Madeleine Mendoza-Ong, a public officer, being then the Municipal Mayor of Laoang, (2) committed the crime charged in relation to, while in the performance and taking advantage of her official functions, (3) did request or receive directly or indirectly, a gift, present or other pecuniary or material benefit in the form of five drums of diesel fuel, for herself or for another, from spouses Mr. and Mrs. Chupo Lao, persons for whom accused Mendoza-Ong, (4) has secured or obtained, or will secure or obtain, a Municipal Government permit or license anent the operation of the bus company, JB Lines, owned by said spouses, in consideration for help given or to be given by the accused. After considering thoroughly this averment as formulated by the prosecution, we are not prepared to say that the impugned information omitted an element needed to adequately charge a violation of Section 3(c) of R.A. 3019.

Petitioner pleads that the pertinent statute must be read in its entirety. She argues that a provision of R.A. 3019 such as Section 3(c) must be interpreted in light of all other provisions, particularly the definition of "receiving any gift," under Section 2(a) thereof, which reads as follows: SEC. 2. Definition of terms.- As used in this Act, the term (c) "Receiving any gift" includes the act of accepting directly or indirectly a gift from a person other than a member of the public officers immediate family, in behalf of himself or of any member of his family or relative within the fourth civil degree, either by consanguinity or affinity, even on the occasion of a family celebration or national festivity like Christmas, if the value of the gift is under the circumstances manifestly excessive. Petitioner contends that pursuant to her reading of the above provision, the value of the alleged gift must be specified in the information. But note that Section 2(c) abovecited mentions a situation where (1) the value of the gift is manifestly excessive; (2) from a person who is not a member of the public officers immediate family; and (3) even on the occasion of a family celebration or national festivity. In contrast, Section 3 (c) earlier quoted in the present case applies regardless of whether the gifts value is manifestly excessive or not, and regardless of the occasion. What is important here, in our view, is whether the gift is received in consideration for help given or to be given by the public officer. The value of the gift is not mentioned at all as an essential element of the offense charged under Section 3 (c), and there appears no need to require the prosecution to specify such value in order to comply with the requirements of showing a prima facie case. Evidently the legislature is aware that in implementing R.A. 3019, it will be precedents that will guide the court on the issue of what is or what is not manifestly excessive.17 In sum, we are constrained to rule that respondent court did not commit grave abuse of discretion amounting to lack or excess of jurisdiction, much less did it gravely err, in denying petitioners motion to quash the information filed against her in Criminal Case No. 23848. This ruling, however, is without prejudice to the actual merits of this criminal case as may be shown during trial before the court a quo. WHEREFORE, the petition is hereby DISMISSED. The assailed resolutions of the Sandiganbayan in Criminal Case No. 23848 are AFFIRMED. No pronouncement as to costs. SO ORDERED. Bellosillo, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

G.R. No. 160991

February 28, 2005

PACIFICO C. VELASCO, petitioner, vs. THE SANDIGANBAYAN (Fourth Division), and THE PEOPLE OF THE PHILIPPINES, respondents. DECISION

CALLEJO, SR., J.: Before the Court is a petition for certiorari under Rule 65 of the Rules of Court for the nullification of the Resolution of the Sandiganbayan in People of the Philippines v. Mayor Pacifico C. Velasco, Criminal Case No. 27821, denying his Supplemental Motion to Quash the Information in the said case, and the Resolution of the Sandiganbayan denying his motion for reconsideration thereof. The Backdrop On September 21, 1999, the Civil Service Commission (CSC) issued a Resolution in CSC Case No. 99-2137 ordering the dismissal of Engr. Emmanuel Agonoy, Municipal Engineer of Bacarra, Ilocos Norte, for gross neglect of duty. Agonoy did not file a motion for reconsideration thereof; instead, he filed a petition for review in the Court of Appeals (CA), docketed as CA-G.R. SP No. 55596. Despite his knowledge of the said CSC resolution, petitioner Mayor Pacifico C. Velasco of Bacarra, Ilocos Norte, allowed Agonoy to report for work as Municipal Engineer. He even issued on October 2, 1999 a Memorandum to the Municipal Treasurer of Bacarra, Lorna S. Dumayag, informing her that she had no reason not to pay the salaries and other benefits of Agonoy in his capacity as Municipal Engineer. She was likewise directed to pay Agonoys salary and other benefits until the Supreme Court had finally decided the case, to wit: Memorandum To : Mrs. Lorna S. Dumayag Municipal Treasurer Bacarra, Ilocos Norte Subject: TO PAY THE SALARIES AND OTHER BENEFITS OF ENGR. EMMANUEL A. AGONOY IN HIS CAPACITY AS MUNICIPAL ENGINEER Date : October 2, 1999 ______________________________________________________________ While it is true that there is a resolution/decision of the Civil Service (CSC Resolution No. 992137), Regional Office No. 1 for the dismissal of Engr. Emmanuel Agonoy dated September 21, 1999, Engr. Agonoy, has still the option to seek or file an appeal to the Court of Appeals based on existing Rules of Court and the Civil Service Commission and thereby you have no reason not to pay his salaries and benefits in his capacity as the Municipal Engineer. In this regard, you are hereby directed to pay all his salaries and benefits not until there will be a final decision given by the Supreme Court regarding his case. For strict compliance. (Sgd.) ILLEGIBLE PACIFICO C. VELASCO Mayor1 In the meantime, Agonoy continued reporting for duty as municipal engineer from November 11, 1999. On August 18, 2000, the CA denied Agonoys petition for review. He filed a motion for reconsideration of the decision, which the CA also denied on September 20, 2000. Undaunted, Agonoy filed a petition for review of the CA decision with this Court. The case was docketed as G.R. No. 145016.

In the meantime, on October 17, 2000, Mayor Velasco issued a Memorandum to the Municipal Treasurer directing her to immediately release Agonoys salary, Representation and Transportation Allowance (RATA) and other benefits. Mayor Velasco again told the treasurer that she had no right to withhold Agonoys benefits, viz.: Memo No. 2000 195 To Mrs. Lorna S. Dumayag Municipal Treasurer Bacarra, Ilocos Norte Subject TO RELEASE IMMEDIATELY THE SALARY, RATA AND OTHER BENEFITS DUE TO ENGR. EMMANUEL AGONOY Date October 17, 2000 ____________________________________________________________ In view of the motion for extension of time to file petition for review on certiorari filed by Engr. Emmanuel Agonoy and his counsel to the Supreme Court dated October 5, 2000, xerox copy is hereto attached,. [y]ou are hereby directed to release immediately without delay the salary, RATA and other benefits due to Engr. Emmanuel Agonoy. You have no right to withhold such benefits for Engr. Agonoy not until the final court of the last recourse which is the Supreme Court will give its final judgment. For strict compliance. (Sgd.) ILLEGIBLE PACIFICO C. VELASCO Mayor Cc: Engr. Emmanuel Agonoy Mun. Engineer Mrs. Filimona S. Acidera MBO/HRMO Designate2 On December 4, 2000, this Court, in G.R. No. 145016, resolved to deny3 the petition for review filed by Agonoy. On February 28, 2001, Agonoy resigned as Municipal Engineer. The Resolution of the Supreme Court dismissing the petition for review of Agonoy became final and executory on May 10, 2001. On March 18, 2002, Philip Corpus Velasco, the Vice Mayor of Bacarra, filed a Complaint4 before the Office of the Ombudsman against petitioner Mayor Velasco, Agonoy and Municipal Treasurer Dumayag for violation of Republic Act No. 3019. In his Resolution dated April 25, 2003, the Ombudsman found probable cause against petitioner Mayor Velasco for violation of Section 3(e) of Rep. Act No. 3019, and filed an Information with the Sandiganbayan charging him of that crime. The case against Agonoy was dismissed because he had earlier resigned; on the other hand, the Ombudsman absolved the Municipal Treasurer, on the finding that she had merely obeyed the orders of the Mayor. The inculpatory portion of the Information reads: That on or about September 21, 1999, in Bacarra, Ilocos Norte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused PACIFICO VELASCO, a public officer, being then the Mayor of the Municipality of Bacarra, committing the crime charged in relation to and taking advantage of his official functions, acting with manifest partiality, evident bad

faith, or gross inexcusable negligence, did then and there willfully, unlawfully and criminally give unwarranted benefits to EMMANUEL AGONOY by allowing the latter to continue his employment as the Municipal Engineer of Bacarra, Ilocos Norte and receive his salaries, RATA and other benefits from November 1, 1999 up to February 28, 2001, in the total amount of THREE HUNDRED SEVENTY-FIVE THOUSAND ONE HUNDRED SIXTY-EIGHT (P375,168.00) PESOS Philippine Currency, despite the fact that he knows fully well that AGONOY has been dismissed from the government service in a Resolution No. 992137 rendered by the Civil Service Commission on September 21, 1999, to the damage and prejudice of the government. CONTRARY TO LAW.5 The petitioner filed a Supplemental Motion to Quash the Information on the ground that it did not charge the offense of violation of Section 3(e) of Rep. Act No. 3019. He alleged therein that while he was aware of the CSC resolution dismissing Agonoy from the service, he was not bound by it because he was not a party to CSC Case No. 99-2137. He also alleged therein that he did not receive any directive from the CSC ordering him to implement its resolution. Furthermore, even if the CSC did issue the said directive, he could not prevent Agonoy from reporting for work. He further averred that he permitted Agonoy to report for work, and receive salaries and other benefits from the municipality because the resolution of the CSC dated September 21, 1999 was not immediately executory. It cannot, therefore, be claimed that he gave unwarranted benefits to Agonoy through manifest partiality, evident bad faith, or gross inexcusable negligence. The petitioner Mayor averred that until the resolution of the Supreme Court denying Agonoys petition for review had become final and executory, he could not be compelled to implement the September 21, 1999 Resolution of the CSC.1awphi1.nt On October 8, 2003, the Sandiganbayan issued a Resolution denying the motion of the petitioner.6 The Court ruled that the Information alleged all the elements of violation of Section 3(e) of Rep. Act No. 3019. The petitioner filed a motion for the reconsideration,7 which the Sandiganbayan likewise denied in a Resolution dated November 24, 2003. The petitioner then filed the instant petition for certiorari with this Court, contending that THE RESPONDENT COURT GRAVELY ABUSED ITS DISCRETION AND ACTED WITHOUT AND/OR IN EXCESS OF JURISDICTION IN NOT QUASHING THE INFORMATION IN THE SUBJECT CASE ON THE GROUND THAT THE ALLEGATIONS THEREIN DO NOT CONSTITUTE THE OFFENSE AS CHARGED.8 The petitioner insists that while the Information alleges that he was aware of the September 21, 1999 Resolution of the CSC dismissing Agonoy from the service, there is no allegation therein that he was served with a copy of the said resolution and was directed to implement the same. He avers that such allegations are essential elements of the offense of violation of Section 3(e) of Rep. Act No. 3019. He reiterates that he was not bound to implement the resolution because he was not a party to the case in the CSC. Hence, he maintains, it cannot be said that in allowing Agonoy to continue reporting for work and ordering the municipal treasurer to give the latter his salary, RATA and other benefits, he (the petitioner) gave unwarranted benefits or undue advantage or preference to Agonoy through manifest partiality, evident bad faith, or gross inexcusable negligence. The petitioner further avers that he could even be charged administratively, civilly, or criminally if he relieved Agonoy from his official duties, and refused to give the latter his salary, RATA and other benefits. In its comment on the petition, the Office of the Special Prosecutor (OSP) avers that although the petitioner was not a party in CSC Case No. 99-2137, he was bound to enforce the CSC Resolution of September 21, 1999 as Municipal Mayor of Bacarra, and may even be cited for contempt for his refusal to do so. The OSP maintains that the resolution of the CSC was immediately executory, considering that Agonoy did not file a reconsideration thereof. Moreover, Agonoys act of filing a

petition for review with the CA and the Supreme Court did not stop the execution of said resolution. It posits that the petitioner could not be held civilly, criminally or administratively liable for not complying with the CSC resolution, and argues that by issuing his memoranda to the Municipal Treasurer, the petitioner acted with manifest partiality, evident bad faith, or gross inexcusable negligence, and gave unwarranted benefits to Agonoy. The petition has no merit and is, therefore, denied. Section 3(e) of Rep. Act No. 3019 states that SEC. 3. Corrupt practices of public officers. (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. In Librada M. Cabrera, et al. v. Sandiganbayan,9 this Court held that the essential elements of violation of Section 3(e) of Rep. Act No. 3019 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 or inexcusable negligence; and 3. That his action caused any undue injury to any party, including the government, or giving any private party unwarranted benefits, advantage or preference in the discharge of his functions.10 The Court explained in the same case that there are two (2) ways by which a public official violates Section 3(e) of Rep. Act No. 3019 in the performance of his functions, namely: (a) by causing undue injury to any party, including the Government; or (b) by giving any private party any unwarranted benefits, advantage or preference. The accused may be charged under either mode or under both. Moreover, in Quibal v. Sandiganbayan,11 the Court held that the use of the disjunctive term "or" connotes that either act qualifies as a violation of Sec. 3(e) of Rep. Act No. 3019. In this case, the petitioner was charged of violating Section 3(e) of Rep. Act No. 3019 under two alternative modes of committing the crime. In its assailed Resolution dated October 8, 2003 the Sandiganbayan declared that the Information filed against the petitioner contained all the essential elements of the crime charged: l^vvphi1.net THE ELEMENTS THE ALLEGATIONS (1) that the accused is a public officer discharging administrative, judicial or official functions; "... accused PACIFICO VELASCO, a public officer, being then the Mayor of the Municipality of Bacarra, committing the crime charged in relation to and taking advantage of his official functions, " (2) that his action caused any undue injury to any party, including the government;

"... give unwarranted benefits to EMMANUEL AGONOY by allowing the latter to continue his employment as the Municipal Engineer of Bacarra, Ilocos Norte and receive his salaries, RATA and other benefits from November 1, 1999 up to February 28, 2001, in the total amount of THREE HUNDRED SEVENTY-FIVE THOUSAND ONE HUNDRED SIXTY-EIGHT (P375,168.00) PESOS Philippine Currency, despite the fact that he knows fully well that AGONOY has been dismissed from the government service in a Resolution No. 992137 rendered by the Civil Service Commission on September 21, 1999, to the damage and prejudice of the government." (3) that he must have acted with manifest partiality, evident bad faith or inexcusable negligence. " acting with manifest partiality, evident bad faith, or gross inexcusable negligence, "12 We agree with the Sandiganbayan. The petitioner, at the time of the alleged commission of the crime, was the Municipal Mayor of Bacarra, Ilocos Norte. As such, he was mandated to ensure that all officers, including himself, abide by Article I of Section 444(b)(x)13 of Rep. Act No. 7160, otherwise known as the Local Government Code, which directs executive officials and employees of the municipality to faithfully discharge their duties and functions as provided by law. Considering such duty, the petitioner had to enforce decisions or final resolutions, orders or rulings of the CSC. Furthermore, under Section 83 of the Uniform Rules on Administrative Cases in the Civil Service, as implemented by CSC Resolution No. 99-1936, he may be cited in contempt of the Commission in case of his refusal or failure to do so, and may even be administratively charged therefor: Section 83. Non-execution of Decision. Any officer or employee who willfully refuses or fails to implement the final resolution, decision, order or ruling of the Commission to the prejudice of the public service and the affected party, may be cited in contempt of the Commission and administratively charged with conduct prejudicial to the best interest of the service or neglect of duty. It is, thus, not necessary that the officer or employee who willfully refuses or fails to implement such final resolution be a party to the case which was resolved by the CSC or by its Regional Office. However, in order for such resolution to be implemented, it is required that a copy of the CSC Resolution be furnished to the implementing agency, or that such agency had knowledge thereof. It is also required that the subject CSC Resolution is final and executory. Corollarily, Section 80 of the Uniform Rules on Administrative Cases in the Civil Service provides that the decision of the CSC or its Regional Office shall be immediately executory after fifteen (15) days from receipt thereof unless a motion for reconsideration is seasonably filed, thus: Section 80. Execution of Decision. The decisions of the Commission Proper or its Regional Offices shall be immediately executory after fifteen (15) days from receipt thereof, unless a motion for reconsideration is seasonably filed, in which case the execution of the decision shall be held in abeyance.14 In this case, the petitioner knew of the questioned CSC Resolution even before he was officially furnished with a copy thereof. In fact, the petitioner unequivocably admitted that he knew of the September 21, 1999 Resolution of the CSC dismissing Agonoy as Municipal Engineer of Bacarra, Ilocos Norte, in his Memoranda to the Municipal Treasurer. The petitioner should have known that in case of Agonoys failure to file any motion for the reconsideration of the CSC Resolution, such resolution would become executory, and he would thus be mandated to enforce the same. However, if Agonoy had filed a petition for review in the CA and the appellate court had issued a stay of execution as provided for in Section 8215 of the Uniform Rules on Administrative Cases in the Civil Service, in tandem with Section 12, Rule 4316 of the Rules of Court, as amended, the petitioner could not be faulted for allowing Agonoy to continue working and receiving compensation therefor.

In this case, Agonoy did not file any motion for reconsideration of the CSC Resolution; while he filed a petition for review of the CSC Resolution in the CA and in this Court, no stay order was issued by either courts in his favor. Thus, the petitioner defied the CSC Resolution dated September 21, 1999 in CSC Case No. 992137; he allowed Agonoy to report for work and ordered the Municipal Treasurer to pay to Agonoy his salary, RATA and other benefits, first, in his Memorandum of October 2, 1999, issued shortly after the CSC Resolution; and second, in the Memorandum of October 17, 2000, issued shortly after the CA denied the petition for review of Agonoy on August 18, 2000. The petitioner even warned the Municipal Treasurer that she had no right to withhold the said salary and other benefits from Agonoy. While there is no showing in the records that the petitioner Mayor was informed that Agonoy did not file any motion for the reconsideration of the CSC Resolution, prudence dictated that he should have ascertained whether Agonoy had done so. The petitioner should have at least attempted to verify whether Agonoy was able to secure a stay order from the CA before issuing such memoranda. Indeed, the petitioners failure to do so constitutes gross negligence on his part. As a consequence of the Memoranda issued by the petitioner, the municipal treasurer remitted Agonoys salary, RATA and other benefits in the total amount of P375,168.00, thus giving unwarranted benefits to the latter and causing undue injury to the government. IN LIGHT OF ALL THE FOREGOING, the petition is DISMISSED for lack of merit.l^vvphi1.net The assailed Resolutions of the Sandiganbayan are AFFIRMED. Costs against the petitioner. SO ORDERED. Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.

G.R. No. 94955 August 18, 1993 JUAN CONRADO, petitioner, vs. THE SANDIGANBAYAN AND THE PEOPLE OF THE PHILIPPINES, respondents. Jose A. Rico for petitioner. The Solicitor General for public respondents.

VITUG, J.: The Sandiganbayan convicted the petitioner, Juan Coronado, for violation of Section 3 (f) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, from which the decision 1 this petition for review on certiorari was filed. Herein petitioner, then a newly hired Process Server in the office of the Clerk of Court of the Regional Trial Court ("RTC") of Antipolo, Rizal, was charged, along with Cesar Villamor and Oscar Caing, in an information, dated 26 November 1985, and docketed as Criminal Case No. 11035 (p. 7, Rollo). The arraignment was postponed for several times because of a pending reinvestigation then being conducted by the Tanodbayan. After the reinvestigation, an "Omnibus Motion to Admit Amended Information and to Dismiss the case Against Accused Cesar Villamor and Oscar Caing",

dated 09 February 1987, was filed by the Tanodbayan (Ibid.). On 23 September 1987, the respondent court granted the omnibus motion above-referred to the thereby admitted the Amended Information against the petitioner, thus That during the period from August 31, 1984 to February 21, 1985 in the Municipality of Antipolo, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, accused JUAN CONRADO, JR., a public officer being the Process Server of all the Regional Trial Court of Antipolo, Rizal, did then and there wilfully and unlawfully neglect and refuse to serve within reasonable time, a copy of the Order dated July 11, 1984, issued by Executive Judge Antonio V. Benedicto in Civil Case No. 290-A entitled "Pinagkamaligan Indo-Agro- Development Corporation, et al. v. Mariano Lim, et al.," denying plaintiffs' Motion for Reconsideration of the Order of January 23, 1984 dismissing their complaint for Cancellation of Title, upon plaintiffs' counsel, Atty. Patrocinio Palanog, without sufficient justification, despite due demand and request made by defendant Mariano Lim, the copy of said Order of July 11, 1984 being served on plaintiffs' counsel only on February 22, 1985, for the purpose of giving undue advantage in favor of the plaintiffs and discrimination against defendants in said case by delaying the finality of the order of dismissal and allowing the plaintiffs to prolong their stay on the land in litigation. CONTRARY TO LAW. (p. 8, rollo) Paraphrasing the Sandiganbayan, the chronological recitation of events, based in part on the stipulation of facts and the rest on the evidence adduced during the trial, may be stated, as follows: First The Regional Trial Court of Rizal (Br. 71) issued an Order, dated 11 July 1984, denying plaintiffs' motion for reconsideration of the order of 23 January 1984, that dismissed the complaint in Civil Case No. 290-A, entitled "Pinagkamaligan Indo-Agro-Development Corporation, et al. v. Mariano Lim et al."; Second On 31 August 1984, the complaining witness Mariano Lim, one of the defendants in the above civil case, learned the rendition of the Order and the fact that it had not yet then been served upon the plaintiffs. Lim left "agitated about the loss of eleven days before the decision's period of finality had commenced to run," and he, therefore, made representations with the Executive Judge, the Hon. Antonio Benedicto, to have the Order served on Atty. Patrocinio Palanog, the counsel for the plaintiffs; Third The accused, a process server, was directed to effect the service. His first attempt was unsuccessful because he could not locate the address of Atty. Palanog. The accused again tried on September 02, 1984, and although this time he found the address, Atty. Palanog and his entire family had apparently gone out for the weekend. The accused found only a woman, not a member of the family of Atty. Palanog, who had only been asked to watch over the house. Accused Coronado did not thus leave the Order; Fourth On 22 February 1985, Lim went back to the courthouse where he was informed that the case had meanwhile been sent to the archives together with 29 other cases (Exhibit "E"{ (Ibid.) Fifth On 25 February 1985, Lim returned to the courthouse and, examining the records, he observed additional unnumbered pages that include, among other things, a) a return, dated 4 September 1984 (Exhibit "F"), signed by accused Coronado stating the plaintiff's counsel, Atty. Palanog, could not be contacted; b) an entry at the foot of the Order of 11 July 1984 (Exhibit "A-2") to the effect that Atty. Palanog had received the Order on 25 February 1985; and (c) a return, dated 25 February 1985 (Exhibit "B") that the Order had indeed been served on plaintiffs (pp. 35-36, Rollo). On the basis of the foregoing, particularly the 5-month delay in the service of the court order, the

Sandiganbayan convicted herein petitioner of having violated Section 3 (f) of Republic Act No. 3019 and imposed upon him the indeterminate penalty of imprisonment for six (6) years and one (1) month to nine (9) years and one (1) day. Hence, this petition. The pivotal issue in this case is whether or not the failure of the petitioner to successfully serve the 11 July 1984 Order, given the above settings, warrants his conviction under Section 3(f) of the AntiGraft and Corrupt Practices Act. The pertinent provision of the law (Republic Act No. 3019) alleged to have been violated provides: Sec. 3. Corrupt Practices of Public Officers: The following shall constitute corrupt practices of any public officer and are hereby declared unlawful: xxx xxx xxx (f) Neglecting or refusing, after due demand or without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly from any person interested in the matter some pecuniary or material benefit or advantage in favor of or discriminating against another interested party. Admittedly, the elements of the offense are that: a) The offender is a public officer; b) The said officer has neglected or has refused to act without sufficient justification after due demand or request has been made on him; c) Reasonable time has elapsed from such demand or request without the public officer having acted on the matter pending before him; and d) Such failure to so act is "for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage in favor of an interested party, or discriminating against another. The attendance of the first three elements in this case can hardly be disputed. The controversy, however, lies on the fourth element. We agree with Sandiganbayan that, indeed, there was failure on the part of the petitioner, a public officer, to observe due diligence in his assigned task; let us call it one of neglect, a broad term which is defined as a failure to do what can be done and what is required to be done (West's legal Thesaurus/Dictionary, 1986). In its generic sense, it would not matter whether such refusal is intended or unintended. But here is not the real issue. To warrant conviction for a violation of Section 3 (f) of the Anti-Graft and Corrupt Practices Act, the law itself additionally requires that the accused's dereliction, besides being without justification, must be for the purpose of (a) obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage in favor of an interested party or (b) discriminating against another interested party. The severity of the penalty imposed by the law leaves no doubt that the legislative intent is to consider this element to be indispensable. The record is bereft of evidence, albeit alleged, to indicate that the petitioner's failure to act was motivated by any gain or benefit for himself or knowingly for the purpose of favoring an interested party or discriminating against another. It is not enough that an advantage in favor of one party, as against another, would result from one neglect or refusal. Had it been so, the law would have perhaps instead said, "or as a consequence of such neglect or refusal undue advantage is derived

by an interested party or another is unduly discriminated against." Let it again be said: It has always been the avowed policy of the law that before an accused is convicted of a crime, his guilt must be proved beyond reasonable doubt, and the burden of that proof rests upon the prosecution. The stringency with which we have scrupulously observed this rule needs no further explanation; suffice it to say that it behooves us to do no less whenever at stake is the life or liberty of a person. And so it is, not only in the appreciation of the evidence but likewise in the application and interpretation of the law. It is not that We are condoning the misconduct of the petitioner, nor that we are unmindful of the prejudice that may have been sustained by the private respondent, but the legal remedies lie elsewhere, not in the instant action. WHEREFORE, the judgment appealed from a REVERSED and the petitioner, Juan Coronado, is hereby acquitted of the charge on reasonable doubt. SO ORDERED. Narvasa C.J., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo, Quiason and Puno, JJ., concur.

OFELIA C. CAUNAN - versus PEOPLE OF THE PHILIPPINES and SANDIGANBAYAN, September 2, 2009 DECISION NACHURA, J.: At bar are consolidated petitions for review on certiorari under Rule 45 of the Rules of Court which assail the Decision[1] dated August 30, 2007 and Resolution[2] dated March 10, 2008 of the Sandiganbayan in Criminal Case Nos. 27944, 27946, 27952, 27953, & 27954, finding petitioners Joey P. Marquez (Marquez) and Ofelia C. Caunan (Caunan) guilty of violation of Section 3(g) of Republic Act (R.A.) No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. Marquez and Caunan, along with four (4) other local government officials of Paraaque City[3] and private individual Antonio Razo (Razo), were charged under five (5) Informations, to wit: The Information in Criminal Case No. 27944 states: That on January 11, 1996 or thereabout, in Paraaque City, Philippines, and within the jurisdiction of this Honorable Court, accused Public Officers JOEY P. MARQUEZ, a high ranking public official, being the City Mayor of Paraaque City and Chairman, Committee on Awards, together with the members of the aforesaid Committee, namely: SILVESTRE DE LEON, being then the City Treasurer, MARILOU TANAEL, the City Accountant (SG 26), FLOCERFIDA M. BABIDA, the City Budget Officer (SG 26), OFELIA C. CAUNAN, the OIC General Services Office (SG 26) and AILYN ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as such and committing the offense in relation to their official duties and taking advantage of their official positions, conspiring, confederating and mutually helping one another and with the accused private individual ANTONIO RAZO, the owner and proprietor of ZARO Trading, a business entity registered with the Bureau of Domestic Trade and Industry, with evident bad faith and manifest partiality (or at the very least, with

gross inexcusable negligence), did then and there willfully, unlawfully and criminally enter into manifestly and grossly disadvantageous transactions, through personal canvass, with said ZARO Trading, for the purchase of 5,998 pieces of walis ting-ting at P25 per piece as per Disbursement Voucher No. 101-96-12-8629 in the total amount of ONE HUNDRED FORTY-NINE THOUSAND NINE HUNDRED FIFTY PESOS (P149,950.00), without complying with the Commission on Audit (COA) Rules and Regulations and other requirements on Procurement and Public Bidding, and which transactions were clearly grossly overpriced as the actual cost per piece of the walis tingting was only P11.00 as found by the Commission on Audit (COA) in its Decision No. 2003-079 dated May 13, 2003 with a difference, therefore, of P14.00 per piece or a total overpriced amount of EIGHTY THREE THOUSAND NINE HUNDRED SEVENTY TWO PESOS (P83,972.00), thus, causing damage and prejudice to the government in the aforesaid sum. The Information in Criminal Case No. 27946 states: That on June 30, 1997 or thereabout, in Paraaque City, Philippines and within the jurisdiction of this Honorable Court, accused Public Officers JOEY P. MARQUEZ, a high ranking public official, being the City Mayor of Paraaque City and Chairman, Committee on Awards, together with members of the aforesaid committee, namely: SILVESTRE DE LEON, being then the City Treasurer, MARILOU TANAEL, the City Accountant (SG 26), FLOCERFIDA M. BABIDA, the City Budget officer (SG 26), OFELIA C. CAUNAN, the OIC General Services Office (SG 26) and AILYN ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as such and committing the offense in relation to their official duties and taking advantage of their official positions, conspiring, confederating and mutually helping one another and with accused private individual ANTONIO RAZO, the owner and proprietor of ZAR[O] Trading, a business entity registered with the Bureau of Domestic Trade and Industry, with evident bad faith and manifest partiality (or at the very least, with gross inexcusable negligence), did then and there willfully, unlawfully and criminally enter into manifestly and grossly disadvantageous transactions, through personal canvass, with ZAR[O] Trading for the purchase of 23,334 pieces of walis ting-ting at P15.00 per piece as per Disbursement Voucher No. 101-98-02-447 in the total amount of THREE HUNDRED FIFTY THOUSAND TEN PESOS (P350,010.00), without complying with the Commission on Audit (COA) Rules and Regulations and other requirements on Procurement and Public Bidding, and which transactions were clearly grossly overpriced as the actual cost per piece of the walis ting-ting was only P11.00 as found by the Commission on Audit (COA) in its Decision No. 2003-079 dated May 13, 2003 with a difference, therefore, of P4.00 per piece or a total overpriced amount of NINETY THREE THOUSAND THREE HUNDRED THIRTY SIX PESOS (P93,336.00), thus causing damage and prejudice to the government in the aforesaid sum. The Information in Criminal Case No. 27952 states: That [in] September 1997, or thereabout, in Paraaque City, Philippines and within the jurisdiction of this Honorable Court, accused Public Officers JOEY P. MARQUEZ, a high ranking public official, being the City Mayor of Paraaque City and Chairman, Committee on Awards, together with members of the aforesaid committee, namely: SILVESTRE DE LEON, being then the City Treasurer, MARILOU TANAEL, the City Accountant (SG 26), FLOCERFIDA M. BABIDA, the City Budget officer (SG 26), OFELIA C. CAUNAN, the OIC General Services Office (SG 26) and AILYN ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as such and committing the offense in relation to their official duties and taking advantage of their official positions, conspiring, confederating and mutually helping one another and with accused private individual ANTONIO RAZO, the owner and proprietor of ZAR[O] Trading, a business entity registered with the Bureau of Domestic Trade and Industry, with evident bad faith and manifest partiality (or at the very least, with gross inexcusable negligence), did then and there willfully, unlawfully and criminally enter into manifestly and grossly disadvantageous transactions, through personal canvass, with ZAR[O] Trading for the purchase of 8,000 pieces of walis ting-ting at P15.00 per piece as per Disbursement Voucher No. 101-98-02-561 in the total amount of ONE HUNDRED TWENTY THOUSAND PESOS (P120,000.00), without complying with the Commission on Audit (COA) Rules and Regulations and other requirements on Procurement and Public Bidding, and which

transactions were clearly grossly overpriced as the actual cost per piece of the walis ting-ting was only P11.00 as found by the Commission on Audit (COA) in its Decision No. 2003-079 dated May 13, 2003 with a difference, therefore, of P4.00 per piece or a total overpriced amount of THIRTY TWO THOUSAND PESOS (P32,000.00), thus causing damage and prejudice to the government in the aforesaid sum. The Information in Criminal Case No. 27953 states: That during the period from February 11, 1997 to February 20, 1997, or thereabout, in Paraaque City, Philippines and within the jurisdiction of this Honorable Court, accused Public Officers JOEY P. MARQUEZ, a high ranking public official, being the City Mayor of Paraaque City and Chairman, Committee on Awards, together with members of the aforesaid committee, namely: SILVESTRE DE LEON, being then the City Treasurer, MARILOU TANAEL, the City Accountant (SG 26), FLOCERFIDA M. BABIDA, the City Budget officer (SG 26), OFELIA C. CAUNAN, the OIC General Services office (SG 26) and AILYN ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as such and committing the offense in relation to their official duties and taking advance of their official positions, conspiring, confederating and mutually helping one another and with accused private individual ANTONIO RAZO, the owner and proprietor of ZAR[O] Trading, a business entity registered with the Bureau of Domestic Trade and Industry, with evident bad faith and manifest partiality (or at the very least, with gross inexcusable negligence), did then and there willfully, unlawfully and criminally enter into manifestly and grossly disadvantageous transactions, through personal canvass, with ZAR[O] Trading for the purchase of 10,100 pieces of walis tingting on several occasions at P25.00 per piece without complying with the Commission on Audit (COA) Rules and Regulations and other requirements on procurement and Public Bidding and which purchases are hereunder enumerated as follows: Date of Transaction February 20, 1997 February 12, 1997 February 11, 1997 Voucher No. 101-97-04-1755 101-97-04-1756 101-97-04-1759 Amount P 3,000.00 P100,000.00 P149,500.00 Quantity 120 pcs. 4,000 pcs. 5,980 pcs.

in the total amount of TWO HUNDRED FIFTY TWO THOUSAND PESOS (P252,000.00), and which transactions were clearly overpriced as the actual cost per piece of the walis ting-ting was only P11.00 as found by the Commission on Audit (COA) in its Decision No. 2003-079 dated May 13, 2003 with a difference, therefore, of P14.00 per piece or a total overpriced amount of ONE HUNDRED FORTY ONE THOUSAND FOUR HUNDRED PESOS (P141,400.00), thus, causing damage and prejudice to the government in the aforesaid sum. The Information in Criminal Case No. 27954 states: That during the period from October 15, 1996 to October 18, 1996 or thereabout, in Paraaque City, Philippines and within the jurisdiction of this Honorable Court, accused Public Officers JOEY P. MARQUEZ, a high ranking public official, being the City Mayor of Paraaque City and Chairman, Committee on Awards, together with members of the aforesaid committee, namely: SILVESTRE DE LEON, being then the City Treasurer, MARILOU TANAEL, the City Accountant (SG 26), FLOCERFIDA M. BABIDA, the City Budget officer (SG 26), OFELIA C. CAUNAN, the OIC General Services Office (SG 26) and AILYN ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as such and committing the offense in relation to their official duties and taking advantage of their official positions, conspiring, confederating and mutually helping one another and with accused private individual ANTONIO RAZO, the owner and proprietor of ZAR[O] Trading, a business entity registered with the Bureau of Domestic Trade and Industry, with evident bad faith and manifest partiality (or at the very least, with gross inexcusable negligence), did then and there willfully, unlawfully and criminally enter into manifestly and grossly disadvantageous transactions, through personal canvass, with ZAR[O] Trading for the purchase of 8,000 pieces of walis ting-ting on several occasions at P25.00 per piece without complying with the Commission on Audit (COA)

Rules and Regulations and other requirements on procurement and Public Bidding and which purchases are hereunder enumerated as follows: Date of Transaction Quantity October 15, 1996 pcs. October 18, 1996 pcs. Voucher Number 101-96-11-7604 101-96-11-7605 Amount P 100,000.00 P 100,000.00 4,000 4,000

in the total amount of TWO HUNDRED THOUSAND PESOS (P200,000.00), and which transactions were clearly grossly overpriced as the actual cost per piece of the walis ting-ting was only P11.00 as found by the Commission on Audit (COA) in its Decision No. 2003-079 dated May 13, 2003 with a difference, therefore, of P14.00 per piece or a total overpriced amount of ONE HUNDRED TWELVE THOUSAND PESOS (P112,000.00), thus, causing damage and prejudice to the government in the aforesaid sum.[4] The five (5) Informations were filed based on the findings of the Commission on Audit (COA) Special Audit Team that there was overpricing in certain purchase transactions of Paraaque City. In March 1999, a Special Audit Team composed of Fatima Bermudez (Bermudez), Carolina Supsup, Gerry Estrada, and Yolando Atienza, by virtue of Local Government Audit Office Assignment Order No. 99-002, audited selected transactions of Paraaque City for the calendar years 1996 to 1998, including the walis tingting purchases. In connection with the walis tingting purchases audit, the audit team gathered the following evidence: 1. Documents furnished by the Office of the City Mayor of Paraaque City upon request of the audit team; 2. Sample walis tingting with handle likewise submitted by the Office of the City Mayor of Paraaque City; 3. Samples of walis tingting without handle actually utilized by the street sweepers upon ocular inspection of the audit team; 4. tingting; Survey forms accomplished by the street sweepers containing questions on the walis

5. Evaluation by the Technical Services Department[5] of the reasonableness of the walis tingting procurement compared to current prices thereof; 6. A separate canvass by the audit team on the prices of the walis tingting, including purchases thereof at various merchandising stores;[6] and 7. Documents on the conduct and process of procurement of walis tingting by the neighboring city of Las Pias. Parenthetically, to ascertain the prevailing price of walis tingting for the years 1996 to 1998, the audit team made a canvass of the purchase prices of the different merchandise dealers of Paraaque City. All, however, were reluctant to provide the team with signed quotations of purchase prices for walis tingting. In addition, the audit team attempted to purchase walis tingting from the named suppliers of Paraaque City. Curiously, when the audit team went to the listed addresses of the suppliers, these were occupied by other business establishments. Thereafter, the

audit team located, and purchased from, a lone supplier that sold walis tingting. As previously adverted to, the audit team made a report which contained the following findings: 1. The purchase of walis tingting was undertaken without public bidding;

2. The purchase of walis tingting was divided into several purchase orders and requests to evade the requirement of public bidding and instead avail of personal canvass as a mode of procurement; 3. The purchase of walis tingting through personal canvass was attended with irregularities; and 4. There was glaring overpricing in the purchase transactions.

Consequently, the COA issued Notices of Disallowance Nos. 01-001-101 (96) to 01-006-101 (96), 01-001-101 (97) to 01-011-101 (97), and 01-001-101 (98) to 01-004-101 (98) covering the overpriced amount of P1,302,878.00 for the purchases of 142,612 walis tingting, with or without handle, by Paraaque City in the years 1996-1998.[7] Objecting to the disallowances, petitioners Marquez and Caunan, along with the other concerned local government officials of Paraaque City, filed a request for reconsideration with the audit team which the latter subsequently denied in a letter to petitioner Marquez. Aggrieved, petitioners and the other accused appealed to the COA which eventually denied the appeal. Surprisingly, on motion for reconsideration, the COA excluded petitioner Marquez from liability for the disallowances based on our rulings in Arias v. Sandiganbayan[8] and Magsuci v. Sandiganbayan.[9] On the other litigation front, the criminal aspect subject of this appeal, the Ombudsman found probable cause to indict petitioners and the other local government officials of Paraaque City for violation of Section 3(g) of R.A. No. 3019. Consequently, the five (5) Informations against petitioners, et al. were filed before the Sandiganbayan. After trial and a flurry of pleadings, the Sandiganbayan rendered judgment finding petitioners Caunan and Marquez, along with Silvestre de Leon and Marilou Tanael, guilty of violating Section 3(g) of R.A. No. 3019. As for accused Flocerfida Babida, Ailyn Romea and private individual Razo, the Sandiganbayan acquitted them for lack of sufficient evidence to hold them guilty beyond reasonable doubt of the offenses charged. The Sandiganbayan ruled as follows: 1. The prosecution evidence, specifically the testimony of Bermudez and the Special Audit Teams report, did not constitute hearsay evidence, considering that all the prosecution witnesses testified on matters within their personal knowledge; 2. The defense failed to question, and timely object to, the admissibility of documentary evidence, such as the Las Pias City documents and the Department of Budget and Management (DBM) price listing downloaded from the Internet, which were certified true copies and not the originals of the respective documents; 3. The Bids and Awards Committee was not properly constituted; the accused did not abide by the prohibition against splitting of orders; and Paraaque City had not been afforded the best possible advantage for the most objective price in the purchase of walis tingting for failure to observe the required public bidding; 4. The contracts for procurement of walis tingting in Paraaque City for the years 1996-

1998 were awarded to pre-selected suppliers; and 5. On the whole, the transactions undertaken were manifestly and grossly disadvantageous to the government. Expectedly, the remaining accused, Caunan, Marquez and Tanael, moved for reconsideration of the Sandiganbayan decision. Caunan and Tanael, represented by the same counsel, collectively filed a Motion for Reconsideration (with Written Notice of Death of Accused Silvestre S. de Leon). Marquez filed several motions,[10] including a separate Motion for Reconsideration. All the motions filed by Marquez, as well as Caunans motion, were denied by the Sandiganbayan. However, with respect to Tanael, the Sandiganbayan found reason to reconsider her conviction. Hence, these separate appeals by petitioners Marquez and Caunan. Petitioner Caunan posits the following issues: 1. [WHETHER] THE PROSECUTIONS PROOF OF OVERPRICING [IS] HEARSAY.

2. [WHETHER THE] RESPONDENT SANDIGANBAYAN [ERRED] IN ADMITTING WITNESS FATIMA V. BERMUDEZ TESTIMONY DESPITE THE FACT THAT ITS SOURCES ARE THEMSELVES ADMITTEDLY AND PATENTLY HEARSAY. 3. [WHETHER THE] RESPONDENT SANDIGANBAYAN GRAVELY [ERRED] IN APPLYING AN EXCEPTION TO THE HEARSAY RULE[.] UNDER THIS EXCEPTION, PUBLIC DOCUMENTS CONSISTING OF ENTRIES IN PUBLIC RECORDS, ETC., x x x ARE PRIMA FACIE EVIDENCE OF THE FACTS STATED THEREIN. 4. CONSEQUENTLY, [WHETHER] RESPONDENT SANDIGANBAYAN GRAVELY ERRED IN NOT ACQUITTING [CAUNAN].[11] For his part, petitioner Marquez raises the following: 1. WHETHER [MARQUEZ] MUST BE ACQUITTED FROM THE SUBJECT CRIMINAL CASES BASED ON THE DOCTRINES LAID DOWN IN THE ARIAS AND MAGSUCI CASES EARLIER DECIDED BY THIS HONORABLE COURT AND THE PERTINENT PROVISIONS OF THE LOCAL GOVERNMENT CODE AND OTHER EXISTING REGULATIONS[;] 2. WHETHER [MARQUEZ] MUST BE ACQUITTED FROM THE SUBJECT CRIMINAL CASES SINCE HE WAS ALREADY EXCLUDED FROM LIABILITY BY THE COMMISSION ON AUDIT[;] 3. WHETHER THE ACQUITTAL OF CO-ACCUSED 1) SUPPLIER ANTONIO RAZO WHO WAS THE OTHER PARTY TO, AND RECEIVED THE TOTAL AMOUNT OF, THE QUESTIONED CONTRACTS OR TRANSACTIONS, 2) CITY ACCOUNTANT MARILOU TANAEL WHO PREAUDITED THE CLAIMS AND SIGNED THE VOUCHERS, 3) CITY BUDGET OFFICER FLOCERFIDA M. BABIDA, AND 4) HEAD OF STAFF AILYN ROMEA CASTS A BIG CLOUD OF DOUBT ON THE FINDING OF [MARQUEZS] GUILT BY THE SANDIGANBAYAN FOURTH DIVISION[;] 4. WHETHER [MARQUEZ] CAN BE CONVICTED ON PLAIN HEARSAY, IF NOT DUBIOUS EVIDENCE OF OVERPRICING OR ON MERE CIRCUMSTANTIAL EVIDENCE THAT DO NOT AMOUNT TO PROOF OF GUILT BEYOND REASONABLE DOUBT IN THE SUBJECT CRIMINAL CASES[;]

5. WHETHER THE ALLEGED OVERPRICING WHICH WAS THE BASIS FOR CLAIMING THAT THE CONTRACTS OR TRANSACTIONS ENTERED INTO BY [MARQUEZ] IN BEHALF OF PARAAQUE CITY WERE MANIFESTLY AND GROSSLY DISADVANTAGEOUS TO THE GOVERNMENT WAS ASCERTAINED OR DETERMINED WITH REASONABLE CERTAINTY IN ACCORDANCE WITH THE REQUIREMENTS OR PROCEDURES PRESCRIBED UNDER COA MEMORANDUM NO. 97-012 DATED MARCH 31, 1997[;] 6. WHETHER THE QUANTUM OF PROSECUTION EVIDENCE HAS OVERCOME THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE WHICH [MARQUEZ] ENJOYS IN THE SUBJECT CRIMINAL CASES[;] 7. WHETHER THE RIGHT OF [MARQUEZ] TO DUE PROCESS WAS VIOLATED WHEN THE CHAIRMAN (JUSTICE GREGORY ONG) OF THE SANDIGANBAYAN FOURTH DIVISION REFUSED TO INHIBIT DESPITE SERIOUS CONFLICT OF INTEREST[;] 8. WHETHER [MARQUEZ] IS ENTITLED TO THE REOPENING OF THE SUBJECT CRIMINAL CASES[;] 9. WHETHER THE RIGHT OF [MARQUEZ] TO BE INFORMED OF THE NATURE OF THE ACCUSATION AGAINST HIM WAS VIOLATED WHEN INSTEAD OF ONLY ONE OFFENSE, SEVERAL INFORMATION HAD BEEN FILED IN THE TRIAL COURT ON THE THEORY OF OVERPRICING IN THE PROCUREMENT OF BROOMSTICKS (WALIS TINGTING) BY WAY OF SPLITTING CONTRACTS OR PURCHASE ORDERS[; and] 10. WHETHER [MARQUEZ] IS ENTITLED TO NEW TRIAL SINCE HIS RIGHT TO AN IMPARTIAL TRIAL WAS VIOLATED IN THE SUBJECT CRIMINAL CASES WHEN THE CHAIRMAN (JUSTICE GREGORY ONG) REFUSED TO INHIBIT DESPITE THE EXISTENCE OF SERIOUS CONFLICT OF INTEREST RAISED BY THE FORMER BEFORE THE JUDGMENT BECAME FINAL.[12] In a Resolution dated February 23, 2009, we directed the consolidation of these cases. Thus, we impale petitioners issues for our resolution: 1. First and foremost, whether the Sandiganbayan erred in finding petitioners guilty of violation of Section 3(g) of R.A. No. 3019. 2. Whether the testimony of Bermudez and the report of the Special Audit Team constitute hearsay and are, therefore, inadmissible in evidence against petitioners. 3. Whether petitioner Marquez should be excluded from liability based on our rulings in Arias v. Sandiganbayan[13] and Magsuci v. Sandiganbayan.[14] Both petitioners insist that the fact of overpricing, upon which the charge against them of graft and corruption is based, had not been established by the quantum of evidence required in criminal cases, i.e., proof beyond reasonable doubt.[15] Petitioners maintain that the evidence of overpricing, consisting of the report of the Special Audit Team and the testimony thereon of Bermudez, constitutes hearsay and, as such, is inadmissible against them. In addition, petitioner Marquez points out that the finding of overpricing was not shown to a reliable degree of certainty as required by COA Memorandum No. 97-012 dated March 31, 1997.[16] In all, petitioners asseverate that, as the overpricing was not sufficiently established, necessarily, the last criminal element of Section 3(g) of R.A. No. 3019 a contract or transaction grossly and manifestly disadvantageous to the government was not proven. Section 3(g) of R.A. No. 3019 provides: Section 3. Corrupt practices of public officersIn addition to acts or omissions of public

officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: xxxx (g) Entering on behalf of the Government, into any contract or transaction, manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby. For a charge under Section 3(g) to prosper, the following elements must be present: (1) that the accused is a public officer; (2) that he entered into a contract or transaction on behalf of the government; and (3) that such contract or transaction is grossly and manifestly disadvantageous to the government.[17] The presence of the first two elements of the crime is not disputed. Hence, the threshold question we should resolve is whether the walis tingting purchase contracts were grossly and manifestly injurious or disadvantageous to the government. We agree with petitioners that the fact of overpricing is embedded in the third criminal element of Section 3 (g) of R.A. No. 3019. Given the factual milieu of this case, the subject contracts would be grossly and manifestly disadvantageous to the government if characterized by an overpriced procurement. However, the gross and manifest disadvantage to the government was not sufficiently shown because the conclusion of overpricing was erroneous since it was not also adequately proven. Thus, we grant the petitions. In criminal cases, to justify a conviction, the culpability of an accused must be established by proof beyond a reasonable doubt.[18] The burden of proof is on the prosecution, as the accused enjoys a constitutionally enshrined disputable presumption of innocence.[19] The court, in ascertaining the guilt of an accused, must, after having marshaled the facts and circumstances, reach a moral certainty as to the accuseds guilt. Moral certainty is that degree of proof which produces conviction in an unprejudiced mind.[20] Otherwise, where there is reasonable doubt, the accused must be acquitted. In finding that the walis tingting purchase contracts were grossly and manifestly disadvantageous to the government, the Sandiganbayan relied on the COAs finding of overpricing which was, in turn, based on the special audit teams report. The audit teams conclusion on the standard price of a walis tingting was pegged on the basis of the following documentary and object evidence: (1) samples of walis tingting without handle actually used by the street sweepers; (2) survey forms on the walis tingting accomplished by the street sweepers; (3) invoices from six merchandising stores where the audit team purchased walis tingting; (4) price listing of the DBM Procurement Service; and (5) documents relative to the walis tingting purchases of Las Pias City. These documents were then compared with the documents furnished by petitioners and the other accused relative to Paraaque Citys walis tingting transactions. Notably, however, and this the petitioners have consistently pointed out, the evidence of the prosecution did not include a signed price quotation from the walis tingting suppliers of Paraaque City. In fact, even the walis tingting furnished the audit team by petitioners and the other accused was different from the walis tingting actually utilized by the Paraaque City street sweepers at the time of ocular inspection by the audit team. At the barest minimum, the evidence presented by the prosecution, in order to substantiate the allegation of overpricing, should have been identical to the walis tingting purchased in 1996-1998. Only then could it be concluded that the walis tingting purchases were disadvantageous to the government because only then could a determination have been made to show that the disadvantage was so manifest and gross as to make a public official liable under Section 3(g) of R.A. No. 3019. On the issue of hearsay, the Sandiganbayan hastily shot down petitioners arguments

thereon, in this wise: We find no application of the hearsay rule here. In fact, all the witnesses in this case testified on matters within their personal knowledge. The prosecutions principal witness, Ms. Bermudez, was a State Auditor and the Assistant Division Chief of the Local Government Audit Office who was tasked to head a special audit team to audit selected transactions of Paraaque City. The report which she identified and testified on [was] made by [the] Special Audit Team she herself headed. The disbursement vouchers, purchase orders, purchase requests and other documents constituting the supporting papers of the teams report were public documents requested from the City Auditor of Paraaque and from the accused Mayor Marquez. Such documents were submitted to the Special Audit Team for the specific purpose of reviewing them. The documents were not executed by Ms. Bermudez or by any member of the Special Audit Team for the obvious reason that, as auditors, they are only reviewing acts of others. The Special Audit Teams official task was to review the documents of the walis tingting transactions. In the process of [the] review, they found many irregularities in the documentations violations of the Local Government Code and pertinent COA rules and regulations. They found that the transactions were grossly overpriced. The findings of the team were consolidated in a report. The same report was the basis of Ms. Bermudezs testimony. x x x.[21] The reasoning of the Sandiganbayan is specious and off tangent. The audit team reached a conclusion of gross overpricing based on documents which, at best, would merely indicate the present market price of walis tingting of a different specification, purchased from a non-supplier of Paraaque City, and the price of walis tingting purchases in Las Pias City. Effectively, the prosecution was unable to demonstrate the requisite burden of proof, i.e., proof beyond reasonable doubt, in order to overcome the presumption of innocence in favor of petitioners. As pointed out by petitioner Caunan, not all of the contents of the audit teams report constituted hearsay. Indeed, as declared by the Sandiganbayan, Bermudez could very well testify thereon since the conclusions reached therein were made by her and her team. However, these conclusions were based on incompetent evidence. Most obvious would be the market price of walis tingting in Las Pias City which was used as proof of overpricing in Paraaque City. The prosecution should have presented evidence of the actual price of the particular walis tingting purchased by petitioners and the other accused at the time of the audited transaction or, at the least, an approximation thereof. Failing in these, there is no basis to declare that there was a glaring overprice resulting in gross and manifest disadvantage to the government. We are not unmindful of the fact that petitioners failed to conduct the requisite public bidding for the questioned procurements. However, the lack of public bidding alone does not automatically equate to a manifest and gross disadvantage to the government. As we had occasion to declare in Nava v. Sandiganbayan,[22] the absence of a public bidding may mean that the government was not able to secure the lowest bargain in its favor and may open the door to graft and corruption. However, this does not satisfy the third element of the offense charged, because the law requires that the disadvantage must be manifest and gross. After all, penal laws are strictly construed against the government. With the foregoing disquisition, we find no necessity to rule on the applicability of our rulings in Arias and Magsuci to petitioner Marquez. Nonetheless, we wish to reiterate herein the doctrines laid down in those cases. We call specific attention to the sweeping conclusion made by the Sandiganbayan that a conspiracy existed among petitioners and the other accused, most of whom were acquitted, particularly private individual Razo, the proprietor of Zaro Trading. Our ruling in Magsuci, citing our holding in Arias, should be instructive, viz.: The Sandiganbayan predicated its conviction of [Magsuci] on its finding of conspiracy among Magsuci, Ancla and now deceased Enriquez.

There is conspiracy when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy is not presumed. Like the physical acts constituting the crime itself, the elements of conspiracy must be proven beyond reasonable doubt. While conspiracy need not be established by direct evidence, for it may be inferred from the conduct of the accused before, during and after the commission of the crime, all taken together, however, the evidence therefore must reasonably be strong enough to show a community of criminal design. xxxx Fairly evident, however, is the fact that the actions taken by Magsuci involved the very functions he had to discharge in the performance of his official duties. There has been no intimation at all that he had foreknowledge of any irregularity committed by either or both Engr. Enriquez and Ancla. Petitioner might have indeed been lax and administratively remiss in placing too much reliance on the official reports submitted by his subordinate (Engineer Enriquez), but for conspiracy to exist, it is essential that there must be a conscious design to commit an offense. Conspiracy is not the product of negligence but of intentionality on the part of cohorts. In Arias v. Sandiganbayan, this Court, aware of the dire consequences that a different rule could bring, has aptly concluded: We would be setting a bad precedent if a head of office plagued by all too common problemsdishonest or negligent subordinates, overwork, multiple assignments or positions, or plain incompetenceis suddenly swept into a conspiracy conviction simply because he did not personally examine every single detail, painstakingly trace every step from inception, and investigate the motives of every person involved in a transaction before affixing his signature as the final approving authority. x x x x" x x x. All heads of offices have to rely to a reasonable extent on their subordinates and on the good faith of those who prepare bids, purchase supplies, or enter into negotiations. x x x. There has to be some added reason why he should examine each voucher in such detail. Any executive head of even small government agencies or commissions can attest to the volume of papers that must be signed. There are hundreds of documents, letters, memoranda, vouchers, and supporting papers that routinely pass through his hands. The number in bigger offices or department is even more appalling.[23] WHEREFORE, premises considered, the Decision dated August 30, 2007 and Resolution dated March 10, 2008 of the Sandiganbayan in Criminal Case Nos. 27944, 27946, 27952, 27953, & 27954 are REVERSED and SET ASIDE. Petitioners Joey P. Marquez in G.R. Nos. 182020-24 and Ofelia C. Caunan in G.R. Nos. 181999 and 182001-04 are ACQUITTED of the charges against them. Costs de oficio. SO ORDERED.

EN BANC G.R. No. 154182 December 17, 2004

EDGAR Y. TEVES and TERESITA Z. TEVES, petitioners, vs. THE SANDIGANBAYAN, respondent.

DECISION DAVIDE, JR., C.J. The pivotal issue in this petition is whether a public official charged with violation of Section 3(h) of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, for unlawful intervention, in his official capacity, in the issuance of a license in favor of a business enterprise in which he has a pecuniary interest may be convicted, together with his spouse, of violation of that same provision premised on his mere possession of such interest. Edgar Y. Teves, former Mayor of Valencia, Negros Oriental, and his wife Teresita Z. Teves seeks to annul and set aside the 16 July 2002 Decision1 of the Sandiganbayan in Criminal Case No. 2337 convicting them of violation of Section 3(h) of the Anti-Graft Law for possessing direct pecuniary interest in the Valencia Cockpit and Recreation Center in Valencia. The indictment reads:2 The undersigned Special Prosecution Officer II, Office of the Special Prosecutor, hereby accuses EDGAR Y. TEVES and TERESITA TEVES of violation of Section 3(h) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows: That on or about February 4, 1992, and sometime subsequent thereto, in Valencia, Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, accused Edgar Y. Teves, a public officer, being then the Municipal Mayor of Valencia, Negros Oriental, committing the crimeherein charged in relation to, while in the performance and taking advantage of his official functions, and conspiring and confederating with his wife, herein accused Teresita Teves, did then and there willfully, unlawfully and criminally cause the issuance of the appropriate business permit/license to operate the Valencia Cockpit and Recreation Center in favor of one Daniel Teves, said accused Edgar Y. Teves having a direct financial or pecuniary interest therein considering the fact that said cockpit arena is actually owned and operated by him and accused Teresita Teves. CONTRARY TO LAW. Upon their arraignment on 12 May 1997, the petitioners pleaded "not guilty." Pre-trial and trial were thereafter set. The petitioners and the prosecution agreed on the authenticity of the prosecutions documentary evidence. Thus, the prosecution dispensed with the testimonies of witnesses and formally offered its documentary evidence marked as Exhibits "A" to "V."3 On 23 February 1998, the petitioners filed their Comment/Objections to the evidence offered by the prosecution and moved for leave of court to file a demurrer to evidence.4 On 29 July 1998, the Sandiganbayan admitted Exhibits "A" to "S" of the prosecutions evidence but rejected Exhibits "T," "U," and "V."5 It also denied petitioners demurrer to evidence,6 as well as their motion for reconsideration.7 This notwithstanding, the petitioners filed a Manifestation that they were, nonetheless, dispensing with the presentation of witnesses because the evidence on record are inadequate to support their conviction. On 16 July 2002, the Sandiganbayan promulgated a decision8 (1) convicting petitioners Edgar and Teresita Teves of violation of Section 3(h) of the Anti-Graft Law; (2) imposing upon them an indeterminate penalty of imprisonment of nine years and twenty-one days as minimum to twelve years as maximum; and (3) ordering the confiscation of all their rights, interests, and participation in the assets and properties of the Valencia Cockpit and Recreation Center in favor of the Government, as well as perpetual disqualification from public office.9 The conviction was anchored on the finding that the petitioners possessed pecuniary interest in the said business enterprise on

the grounds that (a) nothing on record appears that Mayor Teves divested himself of his pecuniary interest in said cockpit; (b) as of April 1992, Teresita Teves was of record the "owner/licensee" of the cockpit; and (c) since Mayor Teves and Teresita remained married to each other from 1983 until 1992, their property relations as husband and wife, in the absence of evidence to the contrary, was that of the conjugal partnership of gains. Hence, the cockpit is a conjugal property over which the petitioners have pecuniary interest. This pecuniary interest is prohibited under Section 89(2) of R.A. No. 7160, otherwise known as the Local Government Code (LGC) of 1991, and thus falls under the prohibited acts penalized in Section 3(h) of the Anti-Graft Law. The Sandiganbayan, however, absolved the petitioners of the charge of causing the issuance of a business permit or license to operate the Valencia Cockpit and Recreation Center on or about 4 February 1992 for not being well-founded. On 26 August 2002, the petitioners filed the instant petition for review on certiorari10 seeking to annul and set aside the 16 July 2002 Decision of the Sandiganbayan. At first, we denied the petition for failure of the petitioners to sufficiently show that the Sandiganbayan committed any reversible error in the challenged decision as to warrant the exercise by this Court of its discretionary appellate jurisdiction.11 But upon petitioners motion for reconsideration,12 we reinstated the petition.13 The petitioners assert that the Sandiganbayan committed serious and palpable errors in convicting them. In the first place, the charge was for alleged unlawful intervention of Mayor Teves in his official capacity in the issuance of a cockpit license in violation of Section 3(h) of the Anti-Graft Law. But they were convicted of having a direct financial or pecuniary interest in the Valencia Cockpit and Recreation Center prohibited under Section 89(2) of the LGC of 1991, which is essentially different from the offense with which they were charged. Thus, the petitioners insist that their constitutional right to be informed of the nature and cause of the accusation against them was transgressed because they were never apprised at any stage of the proceedings in the Sandiganbayan that they were being charged with, and arraigned and tried for, violation of the LGC of 1991. The variance doctrine invoked by the respondent is but a rule of procedural law that should not prevail over their constitutionally-guaranteed right to be informed of the nature and cause of accusation against them. Second, according to the petitioners, their alleged prohibited pecuniary interest in the Valencia Cockpit in 1992 was not proved. The Sandiganbayan presumed that since Mayor Teves was the cockpit operator and licensee in 1989, said interest continued to exist until 1992. It also presumed that the cockpit was the conjugal property of Mayor Teves and his wife, and that their pecuniary interest thereof was direct. But under the regime of conjugal partnership of gains, any interest thereon is at most inchoate and indirect. Also assigned as glaring error is the conviction of Teresita Teves, who is not a public officer. In the information, only Mayor Teves was accused of "having a direct financial or pecuniary interest in the operation of the Valencia Cockpit and Recreation Center in Negros Oriental." His wife was merely charged as a co-conspirator of her husbands alleged act of "while in the performance and taking advantage of his official functions, willfully, unlawfully and criminally caus[ing] the issuance of the appropriate business permit/license to operate" the said cockpit arena. Teresita Teves could not be convicted because conspiracy was not established. Besides, the Sandiganbayan had already absolved the petitioners of this offense. On the other hand, the Sandiganbayan, through the Office of the Special Prosecutor (OSP), insists that the uncontroverted documentary evidence proved that petitioner Edgar Teves had direct pecuniary interest over the cockpit in question as early as 26 September 1983. That interest continued even though he transferred the management thereof to his wife Teresita Teves in 1992, since their property relations were governed by the conjugal partnership of gains. The existence of that prohibited interest is by itself a criminal offense under Section 89(2) of the LGC of 1991. It is

necessarily included in the offense charged against the petitioners, i.e., for violation of Section 3(h) of the Anti-Graft Law, which proscribes the possession of a direct or indirect financial or pecuniary interest in any business, contract, or transaction in connection with which the person possessing the financial interest intervenes in his official capacity, or in which he is prohibited by the Constitution or any law from having any interest. The use of the conjunctive word "or" demonstrates the alternative mode or nature of the manner of execution of the final element of the violation of the provision. Although the information may have alleged only one of the modalities of committing the offense, the other mode is deemed included in the accusation to allow proof thereof. There was, therefore, no violation of the constitutional right of the accused to be informed of the nature or cause of the accusation against them in view of the variance doctrine, which finds statutory support in Sections 4 and 5 of Rule 120 of the Rules of Court. The petition is not totally devoid of merit. Section 3(h) of the Anti-Graft Law provides: Section 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: (h) Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest. The essential elements set out in the afore-quoted legislative definition of the crime of violation of Section 3(h) of the Anti-Graft Law are as follows: 1. The accused is a public officer; 2. He has a direct or indirect financial or pecuniary interest in any business, contract, or transaction; 3. He either a. intervenes or takes part in his official capacity in connection with such interest; or b. is prohibited from having such interest by the Constitution or by any law. There are, therefore, two modes by which a public officer who has a direct or indirect financial or pecuniary interest in any business, contract, or transaction may violate Section 3(h) of the AntiGraft Law. The first mode is if in connection with his pecuniary interest in any business, contract or transaction, the public officer intervenes or takes part in his official capacity. The second mode is when he is prohibited from having such interest by the Constitution or any law. We quote herein the Sandiganbayans declaration regarding petitioners culpability anent the first mode: [T]hat portion of the Information which seeks to indict the spouses Teves for his causing the issuance of a business permit/license to operate the Valencia cockpit on or about February 4, 1992 is not well-founded. Mayor Edgar Teves could not have issued a permit to operate the cockpit in the year 1992 because as of January 1, 1992 the license could be issued only by the Sangguniang Bayan. He may have issued the permit or license in 1991 or even before that when he legally could, but that is not the charge. The charge is for acts committed in 1992.14 [Emphasis supplied].

The Sandiganbayan found that the charge against Mayor Teves for causing the issuance of the business permit or license to operate the Valencia Cockpit and Recreation Center is "not wellfounded." This it based, and rightly so, on the additional finding that only the Sangguniang Bayan could have issued a permit to operate the Valencia Cockpit in the year 1992. Indeed, under Section 447(3)15 of the LGC of 1991, which took effect on 1 January 1992, it is the Sangguniang Bayan that has the authority to issue a license for the establishment, operation, and maintenance of cockpits. Unlike in the old LGC, Batas Pambansa Blg. 337, wherein the municipal mayor was the presiding officer of the Sangguniang Bayan,16 under the LGC of 1991, the mayor is not so anymore and is not even a member of the Sangguniang Bayan. Hence, Mayor Teves could not have intervened or taken part in his official capacity in the issuance of a cockpit license during the material time, as alleged in the information, because he was not a member of the Sangguniang Bayan.17 A fortiori, there is no legal basis to convict Teresita Teves as a co-conspirator in the absence of a finding that Mayor Teves himself is guilty of the offense charged. In short, the Sandiganbayan correctly absolved the petitioners of the charge based on the first mode. And there is no need to belabor this point. The Sandiganbayan, however, convicted the petitioners of violation of Section 3(h) of the Anti-Graft Law based on the second mode. It reasoned that the evidence overwhelmingly evinces that Mayor Teves had a pecuniary interest in the Valencia Cockpit, which is prohibited under Section 89(2) of the LGC of 1991. The information accuses petitioner Edgar Teves, then Municipal Mayor of Valencia, Negros Oriental, of causing, "while in the performance and taking advantage of his official functions, and conspiring and confederating with his wife the issuance of the appropriate business permit/license to operate the Valencia Cockpit and Recreation Center in favor of one Daniel Teves." The last part of the dispositive portion of the information states that "said accused Edgar Y. Teves having a direct financial or pecuniary interest therein considering the fact that said cockpit arena is actually owned and operated by him and accused Teresita Teves." A careful reading of the information reveals that the afore-quoted last part thereof is merely an allegation of the second element of the crime, which is, that he has a direct or indirect "financial or pecuniary interest in any business, contract or transaction." Not by any stretch of imagination can it be discerned or construed that the afore-quoted last part of the information charges the petitioners with the second mode by which Section 3(h) of the Anti-Graft Law may be violated. Hence, we agree with the petitioners that the charge was for unlawful intervention in the issuance of the license to operate the Valencia Cockpit. There was no charge for possession of pecuniary interest prohibited by law. However, the evidence for the prosecution has established that petitioner Edgar Teves, then mayor of Valencia, Negros Oriental,18 owned the cockpit in question. In his sworn application for registration of cockpit filed on 26 September 198319 with the Philippine Gamefowl Commission, Cubao, Quezon City, as well as in his renewal application dated 6 January 198920 he stated that he is the owner and manager of the said cockpit. Absent any evidence that he divested himself of his ownership over the cockpit, his ownership thereof is rightly to be presumed because a thing once proved to exist continues as long as is usual with things of that nature.21 His affidavit22 dated 27 September 1990 declaring that effective January 1990 he "turned over the management of the cockpit to Mrs. Teresita Z. Teves for the reason that [he] could no longer devote a full time as manager of the said entity due to other work pressure" is not sufficient proof that he divested himself of his ownership over the cockpit. Only the management of the cockpit was transferred to Teresita Teves effective January 1990. Being the owner of the cockpit, his interest over it was direct. Even if the ownership of petitioner Edgar Teves over the cockpit were transferred to his wife, still he

would have a direct interest thereon because, as correctly held by respondent Sandiganbayan, they remained married to each other from 1983 up to 1992, and as such their property relation can be presumed to be that of conjugal partnership of gains in the absence of evidence to the contrary. Article 160 of the Civil Code provides that all property of the marriage is presumed to belong to the conjugal partnership unless it be proved that it pertains exclusively to the husband or to the wife. And Section 143 of the Civil Code declares all the property of the conjugal partnership of gains to be owned in common by the husband and wife. Hence, his interest in the Valencia Cockpit is direct and is, therefore, prohibited under Section 89(2) of the LGC of 1991, which reads: Section 89. Prohibited Business and Pecuniary Interest. (a) It shall be unlawful for any local government official or employee, directly or indirectly, to: (2) Hold such interests in any cockpit or other games licensed by a local government unit. [Emphasis supplied]. The offense proved, therefore, is the second mode of violation of Section 3(h) of the Anti-Graft Law, which is possession of a prohibited interest. But can the petitioners be convicted thereof, considering that it was not charged in the information? The answer is in the affirmative in view of the variance doctrine embodied in Section 4, in relation to Section 5, Rule 120, Rules of Criminal Procedure, which both read: Sec. 4. Judgment in case of variance between allegation and proof. When there is a variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved. Sec. 5. When an offense includes or is included in another. An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitutes the latter. And an offense charged is necessarily included in the offense proved when the essential ingredients of the former constitute or form part of those constituting the latter. The elements of the offense charged in this case, which is unlawful intervention in the issuance of a cockpit license in violation of Section 3(h) of the Anti-Graft Law, are 1. The accused is a public officer; 2. He has a direct or indirect financial or pecuniary interest in any business, contract, or transaction, whether or not prohibited by law; and 3. He intervenes or takes part in his official capacity in connection with such interest. On the other hand, the essential ingredients of the offense proved, which is possession of prohibited interest in violation of Section 3(h) of the Anti-Graft Law, are as follows: 1. The accused is a public officer; 2. He has a direct or indirect financial or pecuniary interest in any business, contract or transaction; and 3. He is prohibited from having such interest by the Constitution or any law.

It is clear that the essential ingredients of the offense proved constitute or form part of those constituting the offense charged. Put differently, the first and second elements of the offense charged, as alleged in the information, constitute the offense proved. Hence, the offense proved is necessarily included in the offense charged, or the offense charged necessarily includes the offense proved. The variance doctrine thus finds application to this case, thereby warranting the conviction of petitioner Edgar Teves for the offense proved. The next question we have to grapple with is under what law should petitioner Edgar Teves be punished. It must be observed that Section 3(h) of the Anti-Graft Law is a general provision, it being applicable to all prohibited interests; while Section 89(2) of the LGC of 1991 is a special provision, as it specifically treats of interest in a cockpit. Notably, the two statutes provide for different penalties. The Anti-Graft Law, particularly Section 9, provides as follows: SEC. 9. Penalties for violations. (a) Any public official or private person committing any of the unlawful acts or omissions enumerated in Sections 3, 4, 5, and 6 of this Act shall be punished by imprisonment of not less than six years and one month nor more than fifteen years, perpetual disqualification from public office, and confiscation or forfeiture in favor of the Government of any prohibited interest. On the other hand, Section 514 of the LGC of 1991 prescribes a lighter penalty; thus: SECTION 514. Engaging in Prohibited Business Transactions or Possessing Illegal Pecuniary Interest. Any local official and any person or persons dealing with him who violate the prohibitions provided in Section 89 of Book I hereof shall be punished with imprisonment for six months and one day to six years, or a fine of not less than Three thousand pesos (P3,000.00) nor more than Ten Thousand Pesos (P10,000.00), or both such imprisonment and fine at the discretion of the court. It is a rule of statutory construction that where one statute deals with a subject in general terms, and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible; but if there is any conflict, the latter shall prevail regardless of whether it was passed prior to the general statute.23 Or where two statutes are of contrary tenor or of different dates but are of equal theoretical application to a particular case, the one designed therefor specially should prevail over the other.24 Conformably with these rules, the LGC of 1991, which specifically prohibits local officials from possessing pecuniary interest in a cockpit licensed by the local government unit and which, in itself, prescribes the punishment for violation thereof, is paramount to the Anti-Graft Law, which penalizes possession of prohibited interest in a general manner. Moreover, the latter took effect on 17 August 1960, while the former became effective on 1 January 1991. Being the earlier statute, the Anti-Graft Law has to yield to the LGC of 1991, which is the later expression of legislative will.25 In the imposition on petitioner Edgar Teves of the penalty provided in the LGC of 1991, we take judicial notice of the fact that under the old LGC, mere possession of pecuniary interest in a cockpit was not among the prohibitions enumerated in Section 4126 thereof. Such possession became unlawful or prohibited only upon the advent of the LGC of 1991, which took effect on 1 January 1992. Petitioner Edgar Teves stands charged with an offense in connection with his prohibited interest committed on or about 4 February 1992, shortly after the maiden appearance of the prohibition. Presumably, he was not yet very much aware of the prohibition. Although ignorance thereof would not excuse him from criminal liability, such would justify the imposition of the lighter penalty of a fine of P10,000 under Section 514 of the LGC of 1991. Petitioner Teresita Teves must, however, be acquitted. The charge against her is conspiracy in causing "the issuance of the appropriate business permit/license to operate the Valencia Cockpit and Recreation Center." For this charge, she was acquitted. But as discussed earlier, that charge also includes conspiracy in the possession of prohibited interest.

Conspiracy must be established separately from the crime itself and must meet the same degree of proof, i.e., proof beyond reasonable doubt. While conspiracy need not be established by direct evidence, for it may be inferred from the conduct of the accused before, during, and after the commission of the crime, all taken together, the evidence must reasonably be strong enough to show community of criminal design.27 Certainly, there is no conspiracy in just being married to an erring spouse.28 For a spouse or any person to be a party to a conspiracy as to be liable for the acts of the others, it is essential that there be intentional participation in the transaction with a view to the furtherance of the common design. Except when he is the mastermind in a conspiracy, it is necessary that a conspirator should have performed some overt act as a direct or indirect contribution in the execution of the crime planned to be committed. The overt act must consist of active participation in the actual commission of the crime itself or of moral assistance to his co-conspirators.29 Section 4(b) of the Anti-Graft Law, the provision which applies to private individuals, states: SEC. 4. Prohibitions on private individuals. (b) It shall be unlawful for any person knowingly to induce or cause any public official to commit any of the offenses defined in Section 3 hereof. We find no sufficient evidence that petitioner Teresita Teves conspired with, or knowingly induced or caused, her husband to commit the second mode of violation of Section 3(h) of the Anti-Graft Law. As early as 1983, Edgar Teves was already the owner of the Valencia Cockpit. Since then until 31 December 1991, possession by a local official of pecuniary interest in a cockpit was not yet prohibited. It was before the effectivity of the LGC of 1991, or on January 1990, that he transferred the management of the cockpit to his wife Teresita. In accordance therewith it was Teresita who thereafter applied for the renewal of the cockpit registration. Thus, in her sworn applications for renewal of the registration of the cockpit in question dated 28 January 199030 and 18 February 1991,31 she stated that she is the Owner/Licensee and Operator/Manager of the said cockpit. In her renewal application dated 6 January 1992,32 she referred to herself as the Owner/Licensee of the cockpit. Likewise in the separate Lists of Duly Licensed Personnel for Calendar Years 199133 and 1992,34 which she submitted on 22 February 1991 and 17 February 1992, respectively, in compliance with the requirement of the Philippine Gamefowl Commission for the renewal of the cockpit registration, she signed her name as Operator/Licensee. The acts of petitioner Teresita Teves can hardly pass as acts in furtherance of a conspiracy to commit the violation of the Anti-Graft Law that would render her equally liable as her husband. If ever she did those acts, it was because she herself was an owner of the cockpit. Not being a public official, she was not prohibited from holding an interest in cockpit. Prudence, however, dictates that she too should have divested herself of her ownership over the cockpit upon the effectivity of the LGC of 1991; otherwise, as stated earlier, considering her property relation with her husband, her ownership would result in vesting direct prohibited interest upon her husband. In criminal cases, conviction must rest on a moral certainty of guilt.35 The burden of proof is upon the prosecution to establish each and every element of the crime and that the accused is either responsible for its commission or has conspired with the malefactor. Since no conspiracy was proved, the acquittal of petitioner Teresita Teves is, therefore, in order. WHEREFORE, premises considered, the 16 July 2002 Decision of the Sandiganbayan, First Division, in Criminal Case No. 2337 is hereby MODIFIED in that (1) EDGAR Y. TEVES is convicted of violation of Section 3(h) of Republic Act No. 3019, or the Anti-Graft and Corrupt Practices Act, for possession of pecuniary or financial interest in a cockpit, which is prohibited under Section 89(2) of the Local Government Code of 1991, and is sentenced to pay a fine of P10,000; and (2) TERESITA

Z. TEVES is hereby ACQUITTED of such offense. Costs de oficio. SO ORDERED. Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, Chico-Nazario, and Garcia, JJ., concur. Callejo, Sr., J., on leave, but left his oath of concurrence with the dissent of J. Tinga. Tinga, J., dissenting opinion.

SECOND DIVISION

G.R. No. 110503 August 4, 1994 ANTONIO M. BOLASTIG, petitioner, vs. HON. SANDIGANBAYAN (Third Division) and THE PEOPLE OF THE PHILIPPINES, respondents. Panganiban, Benitez, Parlade, Africa & Barinaga Law Office (Pablaw) for petitioner.

MENDOZA, J.: This is a petition for certiorari to set aside the resolution, dated March 18, 1993, of the Sandiganbayan, granting the motion of the Special Prosecution Officer to suspend the accused from office pendente lite and the resolution, dated March 29, 1993, denying reconsideration of the first resolution. Petitioner Antonio M. Bolastig is governor of Samar. On August 31, 1989, an information was filed against him and two others for alleged overpricing of 100 reams of onion skin paper in violation of the Anti-Graft and Corrupt Practices Act (Republic Act No. 3019). The Information alleged: That on or about June 24, 1986, in the Municipality of Catbalogan, Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused ANTONIO M. BOLASTIG, PEDRO ASON and PRUDENCIO MACABENTA, all public officers, duly appointed and qualified as such, being the OIC Governor, Provincial Treasurer and Property Officer respectively, all of the Province of Samar, and being members of Bids and Awards Committee responsible for the purchase of office supplies for the Provincial Government of Samar and while in the performance of their respective positions, confederating and mutually helping one another and through manifest partiality and evident bad faith, did then and there wilfully and unlawfully enter into a purchase contract with REYNALDO ESPARAGUERRA, a private citizen, for the purchase of certain office supplies, namely: one hundred (100) reams of Onion Skin size 11" x 17" at a unit price of Five Hundred Fifty pesos (P550.00) or a total price of Fifty-Five Thousand Pesos (P55,000.00), which contract was manifestly and grossly disadvantageous to the government as the prevailing unit price for said item was only Fifty-Five Pesos (P55.00) or a total price of Five Thousand Five Hundred Pesos (P5,500.00), thereby causing undue injury to the government in the total amount of FortyNine Thousand Five Hundred Pesos (P49,500.00). CONTRARY TO LAW.

Petitioner was arraigned on January 5, 1993, whereupon he entered a plea of "not guilty." On January 25, 1993, Special Prosecution Officer III Wilfredo Orencia moved for petitioner's suspension, citing sec. 13 of Republic Act No. 3019 which provides in part: Sec. 13. Suspension and loss of benefits. Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property, whether as a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office. Petitioner opposed the motion, arguing inter alia that: 2. Upon a bare invocation of the foregoing provision, the prosecution would have this Honorable Court issue an Order suspending the accused, as if suspension of a public officer is a mindless and meaningless exercise, and is imposed without regard to the spirit and intent of the law upon which it is based. 3. Indeed, it cannot be simply assumed that laws are enacted and followed without a particular purpose to be served, especially when a mechanical application shall injure not only the public official concerned, but the entire electorate as well. 1 The Sandiganbayan rejected petitioner's argument and ordered the suspension of petitioner from office for a period of 90 days. It held that preventive suspension is mandatory under sec. 13, of Rep. Act No. 3019, pursuant to which all that is required is for the court to make a finding that the accused stands charged under a valid information "for any of the above-described crimes for the purpose of granting or denying the sought for suspension." 2 Implementation of the resolution was held in abeyance to allow petitioner to file a motion for reconsideration, which the Sandiganbayan, however, eventually denied on March 29, 1993. Hence, this petition. It is contended that the Sandiganbayan committed a grave abuse of its discretion in issuing its resolution (a) despite the failure of the prosecution to show any public interest to be served, or injury to be prevented, or any other compelling factual circumstance which justifies the preventive suspension of petitioner; and (b) despite the injury not only upon petitioner but also upon the people of Samar whose political rights are trenched upon by the suspension for no valid reason of their duly elected Governor. To the Solicitor General's contention that upon the filing of a valid information suspension pendente lite is mandatory as held in several decisions of this Court, 3 petitioner replies that, while the Sandiganbayan has the power to order preventive suspension, there is a "need [for the Sandiganbayan] to go further, beyond the filing of the information, to a determination of the necessity of the preventive suspension in accordance with the spirit and intent of the Anti-Graft Law." Petitioner explains: In other words, when the Anti-Graft Law gave the courts the authority to order the preventive suspension of the accused, it never intended to impose a mindless and meaningless exercise. The exercise of such authority must always be within the confines of the legislative intent, for to go beyond it would be to exceed the bounds of the law. Preventive suspension should therefore be ordered only when the legislative purpose is achieved, that is, when "the suspension order . . . prevent(s) the accused from using his office to influence potential witnesses or tamper with records which may be vital in the prosecution of the case against him." Corollarily, when the legislative

purpose is not achieved, preventive suspension is improper and should not be decreed." 4 The petitioner's contention has no merit. It is now settled that sec. 13 of Republic Act No. 3019 makes it mandatory for the Sandiganbayan to suspend any public officer against whom a valid information charging violation of that law, Book II, Title 7 of the Revised Penal Code, or any offense involving fraud upon government or public funds or property is filed. 5 The court trying a case has neither discretion nor duty to determine whether preventive suspension is required to prevent the accused from using his office to intimidate witnesses or frustrate his prosecution or continue committing malfeasance in office. The presumption is that unless the accused is suspended he may frustrate his prosecution or commit further acts of malfeasance or do both, in the same way that upon a finding that there is probable cause to believe that a crime has been committed and that the accused is probably guilty thereof, the law requires the judge to issue a warrant for the arrest of the accused. The law does not require the court to determine whether the accused is likely to escape or evade the jurisdiction of the court. It is indeed true that in some of our decisions 6 the expression "the maximum period of ninety (90) days" is used. But that is only for the purpose of emphasizing that the preventive suspension therein involved, which were for more than ninety (90) days, were excessive and unreasonable. It is to be noted that the ninety-day period of preventive suspension is not found in sec. 13 of Republic Act No. 3019 but was adopted from sec. 42 of the Civil Service Decree (P.D. No. 807), 7 which is now sec. 52 of the Administrative Code of 1987. This latter provision states: Sec. 52. Lifting of Preventive Suspension Pending Administrative Investigation. When the administrative case against the officer or employee under preventive suspension is not finally decided by the disciplining authority within the period of ninety (90) days after the date of suspension of the respondent who is not a presidential appointee, the respondent shall be automatically reinstated in the service: Provided, That when the delay in the disposition of the case is due to the fault, negligence or petition of the respondent, the period of delay shall not be counted in computing the period of suspension herein provided. The duration of preventive suspension is thus coeval with the period prescribed for deciding administrative disciplinary cases. If the case is decided before ninety days, then the suspension will last less than ninety days, but if the case is not decided within ninety days, then the preventive suspension must be up to ninety days only. Similarly, as applied to criminal prosecutions under Republic Act No. 3019, preventive suspension will last for less than ninety days only if the case is decided within that period; otherwise, it will continue for ninety days. The duration of preventive suspension will, therefore, vary to the extent that it is contingent on the time it takes the court to decide the case but not on account of any discretion lodged in the court, taking into account the probability that the accused may use his office to hamper his prosecution. Indeed, were the Sandiganbayan given the discretion to impose a shorter period of suspension, say, 80, 70 or 60 days, as petitioner asserts, it would lie in its power not to suspend the accused at all. That, of course, would be contrary to the command of sec. 13 of Republic Act No. 3019. Our holding that, upon the filing of a valid information charging violation of Republic Act No. 3019, Book II, Title 7 of the Revised Penal Code, or fraud upon government or public property, it is the duty of the court to place the accused under preventive suspension disposes of petitioner's other contention that since the trial in the Sandiganbayan is now over with respect to the presentation of evidence for the prosecution there is no longer any danger that petitioner would intimidate prosecution's witnesses. The fact is that the possibility that the accused would intimidate witnesses or otherwise hamper his prosecution is just one of the grounds for preventive suspension. The other one is, as already stated, to prevent the accused from committing further acts of malfeasance while in office. Finally, the fact that petitioner's preventive suspension may deprive the people of Samar of the

services of an official elected by them, at least temporarily, is not a sufficient basis for reducing what is otherwise a mandatory period prescribed by law. The vice governor, who has likewise been elected by them, will act as governor. 8 Indeed, even the Constitution authorizes the suspension for not more than sixty days of members of Congress found guilty of disorderly behavior, 9 thus rejecting the view expressed in one case 10 that members of the legislature could not be suspended because in the case of suspension, unlike in the case of removal, the seat remains filled but the constituents are deprived of representation. For the foregoing reasons, we hold that in ordering the preventive suspension of petitioner, the Sandiganbayan acted according to law. WHEREFORE, the Petition for Certiorari is DISMISSED. SO ORDERED. Narvasa, C.J., Padilla, Regalado and Puno, JJ., concur.