41.1) DEFINITION OF TECHNICAL MALVERSATION. 41.

2) DISTINCTION OF MALVERSATION FROM TECHNICAL MALVERSATION

Art. 220. Illegal use of public funds or property. Any public officer who shall apply any public fund or property under his administration to any public use other than that for which such fund or property were appropriated by law or ordinance shall suffer the penalty of prision correccional in its minimum period or a fine ranging from one-half to the total of the sum misapplied, if by reason of such misapplication, any damage or embarrassment shall have resulted to the public service. In either case, the offender shall also suffer the penalty of temporary special disqualification. ART. 220- ILLEGAL USE OF PUBLIC FUNDS OR PROPERTY This crime is known as technical malversation because the fund or property is already earmarked or appropriated for a certain public purpose. The difference of this crime with the crime of malversation, the offender does not derive personal gain but merely devoted the funds to some other public use Absence of damage is a mitigating circumstance

ELEMENTS: 1. That the offender is a public officer 2. That there are public funds or property under his administration 3. That such public fund or property has been appropriated by law or ordinance 4. That he applies the same to a public use other than that for which such fund or property has been appropriated by law or ordinance.

MALVERSATION the public fund is to be applied to the personal use & benefit of the offender or of another person

ILLEGAL USE the public fund or property is applied to another public use

Art. 217. Malversation of public funds or property. Presumption of malversation.Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or negligence, shall permit any other person to take such public funds or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property, shall suffer: ... The essential elements of this crime are: (a) the offender is a public officer; (b) by reason of his duties he is accountable for public funds and property; and (c) he appropriates, takes, or misappropriates, or permits other persons to take such public funds or property, or otherwise is guilty of misappropriation or malversation of such funds or property. On the other hand, Article 220 of the Revised Penal Code, for which the petitioner was convicted, reads: Art. 220. Illegal use of public funds or property. Any public officer who shall apply any public fund or property under his administration to any public use other than that for which such fund or property were appropriated by law or ordinance shall suffer the penalty of prision correccional in its minimum period or a fine ranging from one-half to the total of the sum misapplied, if by reason of such misapplication, any damage or embarrassment shall have resulted to the public service. In either case, the offender shall also suffer the penalty of temporary special disqualification. The essential elements of this crime, more commonly known as technical malversation, are: (a) the offender is an accountable public officer; (b) he applies public funds or property under his administration to some public use; and (c) the public use for which the public funds or property were applied is different from the purpose for which they were originally appropriated by law ordinance.
Technical malversation is not included in the crime of malversation . A comparison of the two articles

reveals that their elements are entirely distinct and different from the other. In malversation of public funds, the offender misappropriates public funds for his own personal use or allows any other person to take such public funds for the latter's personal use. In technical malversation, the public officer applies public funds under his administration not for his or another's personal use, but to a public use other than that for which the fund was appropriated by law or ordinance. Technical malversation is, therefore, not included in nor does it necessarily include the crime of malversation of public funds charged in the information. (Parungao vs SB) If public funds were not yet appropriated by law or ordinance, and this was applied to a public purpose by the custodian thereof, the crime is plain and simple malversation, not technical malversation. If the funds had been appropriated for a particular public purpose, but the same was applied to private purpose, the crime committed is simple malversation only. 42.) IN MALVERSATION OF PUBLIC FUNDS, THE OFFENDERS RETURN OF THE AMOUNT MALVERSED HAS WHAT EFFECT?

the petitioner was given sufficient time by the COA to comment or respond to its findings. She received on November 13, 2000 a demand letter from COA but failed to comply with the said directive. Instead, on December 4, 2000 and January 12, 2001, she transmitted to the COA a total of 10 deposit slips showing that the total amount of P368,049.42 was credited to the account of the Municipality of Claveria. This was a clear case of restitution of funds. As held in several cases, restitution of funds is a mere mitigating circumstance. It does not obliterate the criminal liability of the accused for malversation of public funds. (Guzman vs Gonzales, 2010) (2011 BAR)
(19) In malversation of public funds, the offenders return of the amount malversed has the following effect (A) It is exculpatory. (B) It is inculpatory, an admission of the commission of the crime. (C) The imposable penalty will depend on what was not returned. (D) It is mitigating.

43.) MAY THE CRIME OF MALVERSATION BE COMMITTED BY A PRIVATE INDIVIDUAL? A private person may also commit malversation under the following situations: (1) (2) Conspiracy with a public officer in committing malversation; When he has become an accomplice or accessory to a public officer who commits malversation;

(3) When the private person is made the custodian in whatever capacity of public funds or property, whether belonging to national or local government, and he misappropriates the same; (4) When he is constituted as the depositary or administrator of funds or property seized or attached by public authority even though said funds or property belong to a private individual.
44.) MAY PRIVATE PROPERTY BE THE SUBJECT MATTER OF THE CRIME OF MALVERSATION? MALVERSATION CASES

Labatagos vs. Sandiganbayan

Case of the pregnant cashier and collecting officer who filed for an LOA but still went to the office to collect tuition fees and other fees for the uniform of the basketball team of the school.

Malversation consists not inly in misappropriation or converting public funds or property to ones personal use but also knowingly allowing others to make use or of misappropriate them.

Estepa vs. Sandiganbayan

Paymaster case. In crime of malversation, all that is necessary for conviction is proof that accountable officer had received the public funds and that he did not have them in his possession when demand therefore was made and he could not satisfactorily explain his failure so to account. An accountable officer may be convicted for malversation even if there is not direct evidence of personal misappropriation where he has not been able to explain satisfactorily the absence of the funds involved. Under 217 there is prima facie evidence of malverdation where the accountable public officer fails to have duly forthcoming any public funds with which he is chargeable upon demand by duly authorized officer.

Ilogon vs. Sandiganbayan

Vales case. The fact that petitioner did not personally use the missing funds is not a valid defense and will not exculpate him from his criminal liability. And as aptly found by respondent Sandiganbayan, the fact the immediate superiors of the accused have acquiesced to the practice of giving out case advances for convenience did not legalize the disbursements.

Azarcon vs. Sandiganbayan

Case where Azarcon was requested by the Director of the BIR to distraint the goods, chattels or other props of Ancla bec a delinquent taxpayer. Although sec 206 of the NIRC authorizes the BIR to effect a constructive distraint by requiring any person to preserve distrained prop there is no provision in the NIRC constituting such person a public officer by reason of such requirement. The BIRs power authorizing a private indiv to act as depositary cannot be stretched to include the power to appoint him as a public officer. Consideration of ART. 222 private indiv as public officer. SC ruled that a private indiv who has in his charge any of the public funds or prop enumerated and commits any of the acts defined should likewise be penelized with the same penalty meted to erring public officers. Nowhere in the said provision is it expressed or implied that a private indiv be deemed a public officer. Azarcon and Ancla, his co-accused, are both private indivs.