Republic of the Philippines

OFFICE OF THE OMBUDSMAN

Office of the Deputy Ombudsman for Mindanao
4th Floor H & C Bldg., Alvarez St., Sta. Ana, Davao City
COA KOH,
Complainants,
-versus-

Case No.:
For: Malversation of Public Funds
or Property

AMAW C. AKO
Local Revenue Collection Clerk II
Municipality of Red Horse, Philippines
Respondent.
x-----------------------------------x
GENIA TERESITA S. SORIANO
AZUCENA S. DOLIA
EDITHO P. BUCOL,
Complainants,
-versus-

Case No.:
For: Dishonesty; Grave Misconduct

AMAW C. AKO
Local Revenue Collection Clerk II
Municipality of Red Horse, Philippines
Respondent.
x----------------------------------x
COUNTER-AFFIDAVIT
Undersigned Respondent, assisted by counsel, unto the Honorable
Office of the Ombudsman Mindanao, most respectfully avers; THAT1. He is the respondent in the above-entitled cases;
2. In order to controvert the allegations of the herein complainants in
their Joint-Affidavit, Respondent hereby submit this CounterAffidavit;
3. Accordingly, Respondent was not able to liquidate his several
accountable forms from 27 March 2014 to 8 September
2014totalinga cash shortage of THREE HUNDRED NINETY THREE
THOUSAND PESOS AND THIRTY EIGHT CENTAVOS (Php. 393,000.38);
4. Respondent made his accounting to said accountable forms,
however he was not able to make his liquidation of the same due to
reason that said amount was used as cash advances of his coemployees in the Local Government of Red Horse, Philippines;
5. The alleged cash shortage amounting to TWO HUNDRED TWENTY
TWO THOUSAND SEVEN HUNDRED EIGHTY TWO PESOS AND
SEVENTY FIVE CENTAVOS (Php. 222,782.75) is fully replenished as of
23 March 2016 as evidence by Official Receipt No. 9493165;(hereto
attached and marked as ANNEX A is the said Official Receipt)

6. It is the humble submission of the respondent that the aboveentitled cases could not be prosecuted for lack of merit and should
be dismissed;
7. The elements of malversation of public funds are:
a) that the offender is a public officer;
b) that he had the custody or control of funds or property by reason of the
duties of his office;
c) that those funds or property were public funds or property for which he
was accountable; and
d) that he appropriated, took, misappropriated or consented or, through
abandonment or negligence, permitted another person to take them1;
8. In the instant case, the last element which would led to the liability
of the Respondent for Malversation of Public Funds of Property is
absent;
9. Worthy to note that the examining officers, herein complainants,
who conducted the examination of the cash and accounts of the
Respondent, acknowledged that the cash shortage of the latter was
booked-up by the accounting department under advances to
officers and employees account, as can be read in Paragraph 8 of
their Joint-Affidavit;
10. In Quizo vs Sandiganbayan2 the court enunciated that:
petitioner successfully overthrew the presumption of
guilt. He satisfactorily proved that not a single
centavo of the missing funds was used by him for
his own personal interest, a fact conceded by the
Tanodbayan 'the bulk of the reported shortage
actually referred to the items disallowed by the
Audit Team representing cash advances extended
to co-employees. In fact, evidence disclosed that the
itemized list of the cash advances xxxxxxx was verified
and found to be correct by an Auditing Examiner,
Petitioner explained that the granting of the cash
advances was done in good faith, with no intent to gain
and borne out of goodwill considering that it was a
practice tolerated in the office. Such being the case,
negligence evidentiary of malice or intent to defraud the
government
cannot
be
imputed
to
him.
xxxxxxxxxxxxxxxx Significantly, in the recent case of
Villacorta vs. People, G.R. No. 68268, November 12, 1986,
the Court acquitted the accused. the municipal
treasurer of Pandan, Catanduanes. of the crime of
malversation of public funds on grounds that he did
not put the missing funds to personal uses, that his
having "allowed others to freely participate of the
chits/vouchers" was a practice which seemed to have
been tolerated even during the time of his predecessor
1 Ocampo III v. People, G.R. Nos. 156547-51, February 4, 2008, 543 SCRA 487, 505506.
2 Quizo vs Sandiganbayan G.R. No. 77120 April 6, 1987

and that there was no negligence approximating malice

or fraud because the wrong payments were made in good
faith;
11. In the instant case, since the complainants themselves acknowledged that
the cash shortage was booked-up as cash advances, it stands to reason that
the alleged cash shortage of the respondent was never been used by him for
his personal interest, which is an element in order to be indicted with
malversation. Further, Respondent could not be said that he permitted others
to used the same, when cash advances is likewise a tolerated practice in
their jurisdiction;
12. As define, misconduct is a transgression of some established and definite
rule of action, more particularly, unlawful behavior or gross negligence by a
public officer. The misconduct is grave if it involves any of the additional
elements of corruption, willful intent to violate the law or to disregard
established rules, which must be established by substantial evidence3;
13. Herein Respondent did not commit any misconduct in the performance of his
official functions as a Revenue Collection Clerk. He did not violate any rule of
law nor was negligent when his collections were used as cash advances by
his co-employees, considering that the same is a tolerated practice;
14. Dishonesty is a question of intention. In ascertaining the intention of a
person accused of dishonesty, consideration must be taken not only on the
facts or circumstances which gave rise to the act committed, but also the
state of mind at the time the offense is committed, the time he might have
had at his disposal for the purpose of meditating on the consequences of his
act, and the degree of reasoning he could have had at that moment4;
15. Respondent, even before the examination over his accountable forms was
conducted by the complainants, had already made his own accounting with
regards to the same. Nevertheless, he was not able to fully liquidate the
same considering the fact that he did not have in his possession the alleged
cash shortage since it was used as payment for the cash advances of his coemployees in the Municipal Hall. Hence, dishonesty could be attributed to
him on the premise that he had no intention or whatsoever to misappropriate
said cash shortage;
16. It is humbly prayed before this Honorable Office of the Ombudsman for
Mindanao that the above-entitled cases be dismissed for lack of merit;
In witness whereof, I hereunto affixed my signature this __ day of
April 2016, at Pagadian City, Philippines.
AMAW C. AKO
Respondent/Affiant
Assisted by:
COUNSEL FOR RESPONDENT
Subscribed and sworn to, before me this ___ day of April 2016, at
Pagadian City, Philippines. This is further to certify that the I have examined
the respondent and that the

3 CSC vs Ledesma G.R. No. 154521 September 30, 2005

4 Wooden v. CSC, G.R. 152884, September 30, 2005