People vs. Dapitan

Restitution or reimbursement after misappropriation does not extinguish criminal liability for malversation; it merely mitigates civil liability and may be appreciated as analogous to voluntary surrender. Conversion was established where the accountable officer deliberately diverted public funds from their authorized transportation purpose to food, accommodation and incidental expenses to facilitate attendance at a private wedding on official time, notwithstanding subsequent return of part of the advance and issuance of a notice of disallowance.

Rex Fusingan Dapitan served as Vice President for Finance, Administration and Resource Generation of Sultan Kudarat State University (SKSU), a state university, with functions assisting the University President in general supervision of fiscal and administrative affairs. SKSU personnel undertook Lakbay Aral educational tours to other state universities and colleges to update SKSU on current best practices, governed by approved training designs and travel authorities and by Executive Order No. 248 on official travel allowances. Jurisdiction over malversation charges against officials of state universities of managerial rank, whether in permanent, acting or interim capacity, is vested in the Sandiganbayan under Section 4 of Republic Act No. 8249, the law applicable to offenses committed in 2010.

In October 2010, Dapitan, then Vice President for Finance, Administration and Resource Generation of SKSU, participated in preparing a training design for a Lakbay Aral of SKSU key officials and employees to Surigao del Sur State University (SSSU) to enrich knowledge of how other state universities and colleges operate. The training design, approved by SKSU President Teresita L. Cambel, provided that expenses other than transportation, i.e., food, accommodation and other incidental expenses, shall be shouldered by the participating employees. Pursuant thereto, Dapitan requested and received a cash advance of P70,000.00 under Disbursement Voucher No. 10-10-186 dated October 26, 2010 to defray transportation expenses, and two travel orders authorized a number of SKSU employees to participate on October 27 to 29, 2010.

Thereafter, 27 participants visited the Tandag and Cantilan Campuses of SSSU and stayed at the Pacific View Resort in Carrascal, Surigao del Sur. On October 28, 2010, Dapitan and the other participants went on a side trip to attend the wedding of a co-employee also held in Carrascal, with the reception held at the same resort. On October 29, 2010, they failed to visit the Surigao del Norte College of Agriculture and Technology as suggested by Cambel, allegedly due to bad weather. Only P50,625.00 was reported spent for transportation, food, accommodation and cellphone load, while the excess of P19,375.00 was returned by Dapitan to University State Auditor Jose Mercado.

Because no proper justification was shown, Mercado issued an Audit Observation Memorandum stating that the expenses were irregular and excessive since the training design was not followed and concluding that the tour was used to facilitate attendance at the wedding, followed by a Notice of Disallowance for P50,625.00. A criminal complaint was then filed before the Office of the Ombudsman, which found probable cause and led to the Information for malversation.

According to the prosecution, the scheduling, attendance at the wedding on official time using public funds, and payment of prohibited items established willful misappropriation. Dapitan, for his part, denied being the proponent though admitting participation in preparing the design, asserting that the Lakbay Aral was a long-standing practice proposed by Finance, Administration and Resource Generation Division and Information and Communication Technology Office personnel to visit SSSU, approved by Cambel with an added directive to visit SDNCAT, and set on October 27 to 29, 2010 during semestral break to avoid class disruption. He further testified that the SDNCAT trip was cancelled on advice of the school's Vocational School Superintendent due to bad weather, that use of the funds for food, accommodation and incidentals was in honest belief allowed under Executive Order No. 248 as amended, and that he submitted a liquidation report with receipts, sales invoices and original certificates of appearance to the internal auditor, which he would not have done had he intended to misappropriate, as corroborated by Cambel, Edwin Alido, Germin S. Umadhay, Elizabeth Dolor Barbosa, Rahmina K. Gayao, Jacquiline B. Candido and Mohammad Abdul Bagumbayan.

The Sandiganbayan factually found that Dapitan was an accountable officer in custody of the P70,000.00 advance, that the tour was deliberately scheduled to coincide with the co-employee's wedding to ensure attendance thereat on official time with public funds, and that Dapitan paid for food, accommodation and incidental expenses despite the contrary provision in the training design. It further found no adequate proof that the Lakbay Aral was properly carried out according to its true objective, noting the absence of travel and liquidation reports for the educational tour.

• Proper Conduct of Official Activity: Petitioner argued that there is nothing wrong with scheduling an activity to coincide with a personal activity as long as the official activity is conducted properly, maintaining that the Lakbay Aral was a long-standing practice properly proposed and approved and that non-visit to SDNCAT was due to bad weather as advised by school authorities.
• Good Faith and Compliance with Travel Rules: Petitioner maintained that he allowed use of the disbursed money for food, accommodation and incidental expenses in the honest belief that Executive Order No. 248 dated May 29, 1995, as amended, permitted it, and that after the trip he duly submitted the required liquidation report with receipts, sales invoices and original certificates of appearance to the internal auditor.
• Restitution Negating Intent: Petitioner argued that he returned the excess of P19,375.00 and, in any event, returned the P50,625.00 purportedly malversed, contending that submission of liquidation documents and return of funds showed lack of intent to misappropriate.

• Accountable Custody of Public Funds: Respondent countered that Dapitan, as Vice President for Finance, Administration and Resource Generation who received the P70,000.00 cash advance under Disbursement Voucher No. 10-10-186, was a high-ranking public officer and accountable officer in custody of public funds by reason of his office.
• Diversion to Private Purpose: Respondent argued that Dapitan willfully appropriated P50,625.00 for personal use and benefit when the Lakbay Aral was deliberately scheduled to coincide with a co-employee's wedding, participants attended said wedding on official time using public funds, and Dapitan paid for food, accommodation and other incidental expenses despite the training design requiring participants to shoulder them.
• Irregular and Excessive Expenditure: Respondent maintained that the Audit Observation Memorandum and Notice of Disallowance established irregularity, with only P50,625.00 spent for transportation, food, accommodation and cellphone load and the educational tour used merely to facilitate wedding attendance rather than its stated objective.

• Sandiganbayan Jurisdiction: Whether the Sandiganbayan has jurisdiction over the malversation charge against Dapitan as Vice President for Finance, Administration and Resource Generation of SKSU, including a merely designated officer, under Section 4 of Republic Act No. 8249.
• Elements of Malversation: Whether Dapitan is guilty beyond reasonable doubt of Malversation of Public Funds under Article 217 of the Revised Penal Code for appropriating P50,625.00 of the P70,000.00 cash advance.
• Restitution and Penalty: Whether restitution of the amount malversed exonerates the accused and what proper penalty, fine and accessory consequences apply in light of Republic Act No. 10951 and the Indeterminate Sentence Law.

• Sandiganbayan Jurisdiction: Yes. Jurisdiction was correctly assumed because Dapitan's fiscal and administrative supervision placed him within or above the category of manager of a state university under Section 4(a)(1)(g) of Republic Act No. 8249, which covers permanent, acting or interim occupancy.
• Elements of Malversation: Yes. Guilty beyond reasonable doubt, all four elements having been established through deliberate scheduling to coincide with the wedding, attendance thereat on official time with public funds, and payment of prohibited expenses contrary to the training design without adequate proof of proper accomplishment.
• Restitution and Penalty: No, restitution does not exonerate. Payment after commission affects only civil liability and mitigates as analogous to voluntary surrender; the indeterminate penalty, perpetual special disqualification and P50,625.00 fine were correct under Republic Act No. 10951, but legal interest on the fine was deleted as fine is not civil liability.

• Sandiganbayan Jurisdiction: The applicable law at commission on October 27 to 29, 2010 was Republic Act No. 8249, not the later Republic Act No. 10660 of 2015. Dapitan's function to assist the University President in general supervision of fiscal and administrative affairs placed his rank within the same category or higher than manager explicitly mentioned in Section 4(a)(1)(g) for presidents, directors, trustees or managers of state universities. Designated status was immaterial because the provision expressly extends to officials occupying positions whether in permanent, acting or interim capacity at commission.
• Elements of Malversation: The four requisites are (a) offender is a public officer, (b) custody or control of funds by reason of office, (c) funds are public funds for which he is accountable, and (d) appropriation, taking or misappropriation or consent or negligent permission. Undisputed public officership satisfied the first; admitted receipt of the P70,000.00 Lakbay Aral funds satisfied the second and third. Conversion, which must be proved and is not established by mere absence or mere failure to turn over funds, was proved by circumstantial and documentary showing of (a) deliberate coincidence of dates to ensure wedding attendance, (b) actual attendance in Carrascal on official time with public funds, and (c) payment for food, accommodation and incidentals contrary to the design. Failure to submit travel and liquidation reports negated the claim of proper accomplishment, and credibility findings of the Sandiganbayan as trial court were accorded deference absent overlooked or misapplied facts.
• Restitution and Penalty: Use of public funds for another purpose completed malversation, damage being unnecessary, so subsequent reimbursement did not extinguish criminal liability or penalty and at best mitigated. Republic Act No. 10951, adjusting archaic 1932 values to present money values, applies retroactively where favorable under its Section 100; under its amended Article 217, amounts above P40,000.00 to P1,200,000.00 carry prision mayor in minimum and medium periods plus perpetual special disqualification and fine equal to amount malversed. With restitution analogous to voluntary surrender and the Indeterminate Sentence Law, the minimum of two (2) years, four (4) months and one (1) day of prision correccional to maximum of six (6) years and one (1) day of prision mayor, plus disqualification and P50,625.00 fine, was sustained. Interest on the fine was deleted because fine, though a pecuniary liability under Article 38, is not civil liability under Article 104 from which interest springs.

• Malversation of Public Funds; Elements — The crime under Article 217 requires (a) offender is a public officer, (b) he has custody or control of funds or property by reason of office, (c) funds or property are public funds or property for which he is accountable, and (d) he appropriated, took or misappropriated, or consented to or through abandonment or negligence permitted taking by another. Applied here to sustain conviction where vice-presidential receipt of the cash advance and diversion to non-authorized expenses were established.
• Malversation; Proof of Conversion — Conviction requires proof beyond reasonable doubt by direct or circumstantial evidence of appropriation or consent or negligent permission; mere absence of funds or mere failure to turn over funds at a given time does not suffice even for a prima facie case, but conviction may rest on unexplained shortage without direct proof of misappropriation. Applied to find conversion proved by deliberate scheduling, wedding attendance on official time, and payments contrary to the training design, unrebutted by travel and liquidation reports.
• Malversation; Restitution Not Exonerating — Payment, indemnification, reimbursement or compromise after commission does not extinguish criminal liability or relieve penalty; at best it affects civil liability and may mitigate as analogous to voluntary surrender, because damage is not an element of malversation. Applied to reject exoneration despite return of P19,375.00 excess and of the P50,625.00 disallowed amount, crediting restitution only in mitigation of penalty, following Perez vs. People and Venezuela vs. People.
• Sandiganbayan Jurisdiction over State University Managers — Under Section 4 of Republic Act No. 8249, exclusive original jurisdiction covers violations of Chapter II, Section 2, Title VII, Book II of the Revised Penal Code and related offenses where accused occupy positions of regional director and higher or Grade 27 and higher, specifically including presidents, directors, trustees or managers of state universities, whether in permanent, acting or interim capacity. Applied to uphold jurisdiction over a designated Vice President for Finance, Administration and Resource Generation whose fiscal-administrative supervision ranked as manager or higher.
• Retroactive Application of Republic Act No. 10951; Fine vs. Civil Liability — Republic Act No. 10951 adjusting property and damage values and penalties has retroactive effect to the extent favorable to the accused, including amended Article 217 penalties and mandatory perpetual special disqualification and fine equal to amount malversed. Fine, though a pecuniary liability, is not civil liability, so legal interest imposed on civil awards does not attach to fine. Applied to impose the adjusted indeterminate penalty while deleting 6% interest on the P50,625.00 fine.

• "Mere absence of funds is not sufficient proof of conversion; neither is the mere failure of the public officer to turn over the funds at any given time sufficient to make even the prima facie case." — States the evidentiary threshold for the conversion element of malversation, requiring proof of appropriation beyond mere shortage or delay.
• "The payment, indemnification, or reimbursement of, or compromise on the amounts or funds malversed or misappropriated, after the commission of the crime, does not extinguish the accused's criminal liability or relieve the accused from the penalty prescribed by the law." — Articulates the ratio that restitution is not exonerating and affects only civil liability or mitigation.
• "The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal uses." — Quotes the statutory presumption of malversation under Article 217 framing the prosecution's burden and the need for explanatory evidence.

• Manuel vs. SB, 681 Phil. 273, 291-292 (2012) — Cited as authority for the four elements of malversation under Article 217 applied to establish Dapitan's liability.
• Legrama vs. SB, 687 Phil. 253, 261 (2012) — Cited for the rule that conversion must be proved beyond reasonable doubt and that unexplained shortage suffices absent direct proof of misappropriation.
• Perez vs. People, 568 Phil. 491, 520 (2008) — Followed for the doctrines that payment or reimbursement is not a defense to malversation and that damage is not an element thereof.
• Venezuela vs. People, 826 Phil. 11, 27 (2018) — Followed for the rule that post-commission reimbursement affects only civil liability and may mitigate as analogous to voluntary surrender.
• People vs. Manlao, G.R. No. 234023, September 3, 2018 — Cited to support retroactive application of Republic Act No. 10951 where favorable to the accused in calibrating the malversation penalty.

• Article 217, Revised Penal Code, as amended — Defines and penalizes malversation by an accountable public officer who appropriates, takes, misappropriates or negligently permits taking of public funds or property, with presumption from failure to produce funds on demand; applied to find all elements present in diversion of Lakbay Aral funds.
• Section 4, Republic Act No. 8249 — Vests Sandiganbayan with exclusive original jurisdiction over specified felonies including malversation committed by officials of executive branch of Grade 27 and higher, specifically managers of state universities, whether permanent, acting or interim; applied to sustain jurisdiction over Dapitan's designated vice-presidency.
• Sections 40 and 100, Republic Act No. 10951 — Section 40 amends Article 217 penalties so amounts above P40,000.00 to P1,200,000.00 carry prision mayor minimum to medium plus perpetual special disqualification and equal fine; Section 100 gives retroactive effect if favorable; applied to impose the adjusted indeterminate sentence while retaining disqualification and fine.
• Articles 38 and 104, Revised Penal Code — Distinguish pecuniary liabilities including fine from civil liability arising from crime; applied with Nacar vs. Gallery Frames and Eastern Shipping Lines, Inc. vs. Court of Appeals to delete legal interest on the fine.

Hernando, Inting, Gaerlan and Dimaampao, JJ., concurred. No separate concurring reasoning adding to the majority was recounted in the text.