People vs. Ladjaalam G.R. Nos. 136149-51.

September 19, 2000 FACTS: Four Informations were filed against appellant Walpan Ladjaalam in the Regional Trial Court (RTC) of Zamboanga City (Branch 16), three of which he was found guilty, to wit: 1) maintaining a drug den in violation of Section 15-A, Article III, of Republic Act No. 6425 (Dangerous Drugs Act of 1972); 2) illegal possession of firearm and ammunition in violation of Presidential Decree No. 1866 as amended by Republic Act. No. 8294; and 3) direct assault with multiple attempted homicide. The following information was provided by the prosecution: 1) In the afternoon of September 24, 1997, more than thirty (30) policemen proceeded to the house of appellant and his wife to serve the search warrant when they were met by a volley of gunfire coming from the second floor of the said house. They saw that it was the appellant who fired the M14 rifle towards them. 2) After gaining entrance, two of the police officers proceeded to the second floor where they earlier saw appellant firing the rifle. As he noticed their presence, the appellant jumped from the window to the roof of a neighboring house. He was subsequently arrested at the back of his house after a brief chase.

3) Several firearms and ammunitions were recovered from appellants house. Also found was a pencil case with fifty (50) folded aluminum foils inside, each containing methamphetamine hydrochloride. 4) A paraffin test was conducted and the casts taken both hands of the appellant yielded positive for gunpowder nitrates. 5) Records show that appellant had not filed any application for license to possess firearm and ammunition, nor has he been given authority to carry firearms. ISSUE: Whether or not such use of an unlicensed firearm shall be considered as an aggravating circumstance. HELD: No. Section 1 of RA 8294 substantially provides that any person who shall unlawfully possess any firearm or ammunition shall be penalized, unless no other crime was committed. Furthermore, if homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. Since the crime committed was direct assault and not homicide or murder, illegal possession of firearms cannot be deemed an aggravating circumstance.

People of the Phils vs Almeida, 418 SCRA 254 On July 1, 1999, in the Municipality of San Pedro, Province of Laguna, Philippines, said accused, without first securing license/permit from the proper authority, have in his possession, custody and control the following items: (1) ammunitions for .38 caliber gun (8 pieces)

(2) (3) (4)

ammunitions for .45 caliber gun (3 pieces) ammunitions for .38 caliber gun (3 pieces) ammunitions for .22 caliber gun (5 pieces)

On July 1, 1999, in the Municipality of San Pedro, Province of Laguna, Philippines, the accused willfully, unlawfully and feloniously sell, pass and deliver to a poseurbuyer in exchange for P4,500.00 bills methamphetamine hydrochloride shabu in one (1) heat-sealed transparent plastic bag weighing 4.810 grams. The Prosecutions Evidence Responding officers of the PNP namely: SPO4 Carlito Candelaria (Carlito), SPO4 Teofilo Royena (Teofilo), PO3 Ricardo Umayan (Ricardo), PO3 Victor Vivero (Vivero) and SPO4 Bonifacio Deroca (Deroca), conducted a buy-bust operation against appellant, who was reportedly peddling shabu. Accompanying them was a civilian asset who was to act as the poseur-buyer and was given P4,500 for that purpose. The selling of shabu took place outside the steel gate of the residence of Vanessa Padua (Vanessa), a live-in partner of the accused appellant where the latter is staying. The operation did victory and evidences were presented and confirmed positive through laboratory tests. The Defenses Evidence On the evening of July 1, 1999, said appellant was visiting his girlfriend, Vanessa, at her house on 34 V. Veragra St., Cuyab, San Pedro, Laguna. Indeed, those above mentioned Police Men searched the area of the appellant. To this incident, the appellant filed a complaint against the Teofilo and Ricardo before the NAPOLCOM and the Office of the Ombudsman for the illegal search and taking the appellants money amounting to P130,000. Held: The paragraph to wit: IN VIEW THEREOF, the court finds that the prosecution has duly established the guilt of accused beyond reasonable doubt of the crimes of a Violation of a) Section 16, Article III of RA 6425, as amended, in Criminal Case No. 1233, b) PD 1866, as amended, in Criminal Case No. 123[4], and c) Section 15, Article III of RA 6425, as amended, in Criminal Case No. 1235 without having been permitted by law. WHEREFORE judgment is hereby rendered sentencing accused Rolando Almeida y Calvin @ Tata Rolly as follows: In Criminal Case No. 1233 1. 2. 3. to suffer the penalty of reclusion perpetua; pay a fine of P500,000; and to pay costs of suit.

In Criminal Case No. 1234 1. to suffer an indeterminate penalty of imprisonment of from four (4) years, two (2) months and one (1) day of prision correctional as minimum to six (6) years of prision correctional as maximum; and

2.

to pay costs of suit.

In Criminal Case No. 1235 1. to suffer an indeterminate penalty of imprisonment of from six (6) months of arresto mayor as minimum to four (4) years of prision correctional as maximum; and 2. to pay costs of suit.

A ruling was made to review the appellants conviction of illegal selling of dangerous drugs and the court finds it not compelling to sentence the appellant for the three (3) charges for the reason of the failure of the officer to present the evidence as the product of the according to the appellant as an illegal search and with regards to the ammunitions, the statement was made and showed that those ammunitions were laid in the floor and the court finds it that the said ammunitions are not to be considered as possession of the appellant. As for the charges of selling dangerous drugs, the police also failed to present the evidence of the marked selling. The court held reversed and set aside criminal cases nos.: Criminal Cases Nos. 1234-SPL and 1235-SPL and thereby, held the appellant acquitted. However, conviction of case no. 1233 is affirmed. Statement to wit: WHEREFORE, the assailed decision of the Regional Trial Court of San Pedro, Laguna, Branch 31, in Criminal Cases Nos. 1234-SPL and 1235-SPL, is hereby REVERSED and SET ASIDE and appellant,

Petitioner: Vicente Agote Respondents: Hon. Manuel Lorenzo, Presiding Judge, RTC, Branch 43, Manila and People of the Philippines Ponente: J. Garcia FACTS: Petitioner Vicente Agote was charged to have violated Presidential Decree No. 1866 (Illegal Possession of Firearms) and COMELEC Resolution No. 2826 (Gun Ban) for having in possession one (1) .38 cal. Rev. with four (4) live bullets in a public place during the election period without having secured the necessary license and authority from the COMELEC. During the pendency of the case, Republic Act No. 8294 was approved into law. Eventually, the trial court rendered judgment of conviction in both cases wherein separate penalties were imposed respectively. Petitioner moved for reconsideration, claiming that the penalty for illegal possession of firearms under P.D. No. 1866 had already been reduced by the subsequent enactment of Republic Act No. 8294, which the trial court subsequently denied. He then filed a petition before the Court of Appeals which was docketed as CA-G.R. SP No. 2991-UDK, but was likewise dismissed. ISSUES: 1) Whether or not Republic Act No. 8294 should be applied retroactively. 2) Whether or not such use of an unlicensed firearm shall be considered as a special aggravating circumstance. HELD: 1) Yes. The rule is that penal laws shall have a retroactive effect in so far as they favor the person guilty of a felony. Republic Act No. 8294 lowers the penalty for illegal possession of firearms depending on the class of firearm possessed. The lighter penalty

may be imposed to a person who shall unlawfully possess any firearm or ammunition, unless no other crime was committed. Moreover, the Court has already ruled in Gonzales vs. Court of Appeals that said law must be given retroactive effect in favor of those accused under P.D. No. 1866. But as violation of COMELEC Resolution No. 2826 or the Gun Ban was also committed by the petitioner at the same time, the Court cannot but set aside petitioners conviction for illegal possession of firearm. 2) No. Section 1 of RA 8294 substantially provides that any person who shall unlawfully possess any firearm or ammunition shall be penalized, unless no other crime was committed. It further provides that such use of an unlicensed firearm shall be considered only as an aggravating circumstance in cases of homicide or murder. Since the crime committed was in violation of COMELEC Resolution No. 2826 or the Gun Ban, illegal possession of firearms cannot be deemed an aggravating circumstance.

Criminal Law; Special Penal Laws: CELINO v. CA, G.R. No. 170562 June 29, 2007 Brief Facts: Two separate Information were filed against the petitioner, Angel Celino: one for violation of the Comelec gun ban; the other, for Illegal Possession of Firearm under R.A. 8294. After pleading not guilty to the former, he filed a Motion to Quash on the latter contending that he cannot be prosecuted for illegal possession of firearms x x x if he was also charged of having committed another crime of [ sic] violating the Comelec gun ban under the same set of facts x x x. Issue: Whether the mere filing of an information for gun ban violation against him necessarily bars his prosecution for illegal possession of firearm because of the provision of the law that "Provided, however, That no other crime was committed by the person arrested." Ruling: Ruling against the petitioner, the High Court explained that he can be convicted of illegal possession of firearms, provided no other crime was committed by the person arrested. The word committed taken in its ordinary sense, and in light of the Constitutional presumption of innocence, necessarily implies a prior determination of guilt by final conviction resulting from successful prosecution or voluntary admission. Citing the case of People v. Valdez (1999), the Supreme Court ruled that all pending cases involving illegal possession of firearm should continue to be prosecuted and tried if no other crimes expressly indicated in Republic Act No. 8294 are involved x x x. In sum, when the other offense involved is one of those enumerated under R.A. 8294, any information for illegal possession of firearm should be quashed because the illegal possession of firearm would have to be tried together with such other offense, either considered as an aggravating circumstance in murder or homicide,or absorbed as an element of rebellion, insurrection, sedition or attempted coup detat. Conversely, when the other offense involved is not one of those enumerated under R.A. 8294, then the separate case for illegal possession of firearm should continue to be prosecuted.

ANTI GRAFT LAW GR. No. 81563 & GR. No. 82512 December 19, 1989

Amado C. Arias & Cresencio D. Data petitioners vs. The SANDIGANBAYAN, respondents.

Petition to SC

GUTIERREZ, JR., J:

Summary of Facts: Arias (District Engineer) and Data (Chief Auditor), officials of the Province of Rizal were found guilty by the Sandiganbayan (SB) together with their subordinates and a private citizen (seller of land) for having caused injury to & damage to the Republic of the Philippines in connection with scandalous overpricing of land purchased by the Government as right of way for a floodway project, by allowing & approving the illegal disbursement & expenditure of public funds. The decision of SB insofar as Arias & Data are concerned was overturned by the SC based on the reasoning of reliance of good faith on subordinates.

Facts Petitioners Arias Arias (District Engineer) and Data (Chief Auditor), were found guilty by SB for violating sec. 3 (e) of the Anti-Graft Practices Act: 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: xxxxxxxxx (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

Arias and Data were convicted by SB violating the above provision together with their 3 subordinates & 1 private citizen Gutierrez (seller of land) (6 silang lahat na convicted).

The background of the story dates back in year 1975, when the Bureau of Public Works planned the Mangahan Floodway Project to ease the perennial floods in some parts of Marikina and Pasig, Metro Manila. This floodway project will traverse certain portions of Ortigas, where the land sold by Gutierrez to the Govt (subject matter in this case) was located.

The implementation of this floodway project was entrusted to the Pasig Engineering District headed by Data (District Engineer). In this regard, Data formed a committee headed by Fernando (Supervising Civil Engr) as over-all in-charge (Fernando did not face trial and remains at-large) and 3 other subordinates. The subordinates were Mendoza & Hucom, for acquisition and improvements, and Jose the Instrument man for surveys (Mendoza & Jose are 2 other convicted co-accused). This committee was tasked to inform affected lot owners affected by the floodway project and to receive and process payments.

Among the lot owners affected was a 19, 004 sq.m. riceland (subject matter in this case) owned by Agleham, which was previously owned by parents of Gutierrez (private citizen & convicted co-accused) from whom Agleham acquired his property. Gutierrez was one of those who filed an application for payment, holding with her a Special Power of Attorney allegedly executed by Agleham. In her application, she submitted fake and falsified documents i.e. Tax Declaration Certificate purporting that the land was residential with fair market value of P80/sq m.

These documents were submitted to 2 other convicted co-accused -- examined by Arcaya (Admin. Officer) while Cruz (Senior Engineer) initialed the documents & prepared a Deed of Sale. Cruz later transmitted them to District Engineer Data. Data and Gutierrez both later signed the Deed of Sale. These documents were sent to Director Anolin of Bureau of Public Works, who recommended approval of the Deed of Sale and later returned to Datas office. Hence the sale was registered and a TCT was issued in the name of the Govt.

For this sale, a General Voucher was prepared, for the amount of P1.5M plus with certifications of Data and his 3 subordinates (Fernando ,Cruz, and one accountant). This general voucher and other supporting documents were pre-audited and approved for payment by Arias (Chief Auditor), petioner and convicted co-accused. Arias then later issued 16 PNB checks for total sum of P1.5M plus for Gutierrez as payment of property in 1978.

In 1979, an investigation was conducted by the Ministry of National Defense on this alleged gross overpricing of Aglehams property. Several Government employees denied signing the certification and gave sworn statements. One of them is Oco, an Assistant Mun. Assessor who provided the genuine Tax Declaration Certificate, showing among others that the subject property is actually a riceland (but classified as residential) and overpriced at P80/sq.m. (instead of appraised value of P5/sq.m.) -- showing that the officials of the District Engineering Office falsified them . The investigators also found that the Deed of Sale was approved by Arias for payment of P1.5, who didnt question the altered amount (snowflaked and amount superimposed) nor checked the veracity of the fake documents.

The case was on trial for 6 years, and SB found 2 petitioners ARIAS & DATA, their 3 subordinates (CRUZ, JOSE, & ARCAYA) & private citizen GUTIERREZ guilty of violation of Anti-Graft and Corrupt Practices Act.

Among the 6 convicted accused, only the 2 petitioners, Arias (District Engineer) and Data (Chief Auditor) appealed.

ISSUE: WON SB petitioners ARIAS and DATA are guilty as co-conspirators in the conspiracy to cause injury to the Government through the irregular disbursement and expenditure of public funds. NO

RATIO: No. 1. Under the Sandiganbayan's decision, a department secretary, bureau chief, commission chairman, agency head, and all chief auditors would be equally culpable for every crime arising from disbursements which they have approved . The department head or chief auditor would be guilty of conspiracy simply because he was the last of a long line of officials and employees who acted upon or affixed their signatures to a transaction. Guilt must be premised on a more knowing, personal, and deliberate participation of each individual who is charged with others as part of a conspiracy. 2. The Sandiganbayan, without any clear factual basis for doing so has assumed that the P5.00 per square meter value fixed by the assessor in the tax declarations was the correct market value of the Mangahan property and if the Government purchased the land for P80.00 a square meter, it follows that it must have suffered undue injury. In the instant case, the assessor's low evaluation, in the fixing of which the landowner had no participation, was used for a purpose infinitely more weighty than mere expropriation of land. It forms the basis for a criminal conviction by the SB. The Court is not prepared to say that P80.00 to P500.00 a square meter for land in Pasig in 1978 would be a fair evaluation. The value must be determined in eminent domain proceedings by a competent court. We are certain, however, that it cannot be P5.00 a square meter. Hence, the decision, insofar as it says that the "correct" valuation is P5.00 per square meter and on that basis convicted that petitioners of causing undue injury, damage, and prejudice to the Government because of gross overpricing, is grounded on shaky foundations. There can be no overpricing for purposes of a criminal conviction where no proof adduced during orderly proceedings has been presented and accepted. 3. BASIC REASON OF SC: We would be setting a bad precedent if a head of office plagued by all too common problems-dishonest or negligent subordinates, overwork, multiple assignments or positions, or plain incompetence is 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. There appears to be no question from the records that documents used in the negotiated sale were falsified. A key tax declaration had a typewritten number instead of being machine-numbered. The registration stampmark was antedated and the land reclassified as residential instead of ricefield. But were the petitioners guilty of conspiracy in the falsification and the subsequent charge of causing undue in injury and damage to the Government? We can, in retrospect, argue that Arias should have probed records, inspected documents, received procedures, and questioned persons. It is doubtful if any auditor for a fairly sized office could personally do all these things in all vouchers presented for his signature. The Court would be asking for the impossible. All heads of offices have to rely to a reasonable extent 'on their subordinates and on the good faith of those prepare bids, purchase supplies, or enter into negotiations. If a department secretary entertains important visitors, the auditor is not ordinarily expected to call the restaurant about the amount of the bill, question each guest whether he was present at the luncheon, inquire whether the correct amount of food was served and otherwise personally look into the reimbursement voucher's accuracy, propriety, and sufficiency. 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 document , letters and supporting paper that routinely pass through his hands. The number in bigger offices or departments is even more appalling. There should be other grounds than the mere signature or approval appearing on a voucher to sustain a conspiracy charge and conviction. ARIAS PARTICIPATION: Arias joined the Pasig office on July 19, 1978. The negotiations for the purchase of the property started in 1977. The deed of sale was executed on April 20, 1978. Title was transferred to the Republic on June 8, 1978. In other words, the transaction had already been consummated before his arrival. Should the big amount of P1,520,320.00 have caused him to investigate . gate the smallest detains of the transaction? Yes, if the land was really worth only P5.00 a square meter. However, if land in Pasig was already worth P80.00 a square meter at the time, no warning bell of intuition would have sounded an inner alarm. Land along Ortigas Avenue on the way to Pasig is now worth P20,000.00 to P30,000.00 a square meter. DATAS PARTICIPATION: The committee he formed determined the authenticity of the documents presented to them for processing and on the basis thereof prepared the corresponding deed of sale; thereafter, the committee submitted the deed of sale together with the supporting documents to petitioner Data for signing; on the basis of the supporting certified documents which appeared regular and complete on their face, petitioner Data, as head of the office and the signing authority at that level, merely signed but did not approve the deed of sale as the approval thereof was the prerogative of the Secretary of Public Works for its final approval.

HELD: SB decision SET ASIDE insofar as it convicts and sentences petitioners Arias & Data. They are both acquitted on grounds of reasonable doubt. Inadequacy of evidence is not sufficient to warrant a conviction.

DISSENTING OPINION OF GRINO-AQUINO: Conspiracy of Silence and Inaction The petitioner's partiality for Agleham/Gutierrez may be inferred from their having deliberately closed their eyes to the defects and irregularities of the transaction in his favor and their seeming neglect, if not deliberate omission, to check, the authenticity of the documents presented to them for approval. Since partiality is a mental state or predilection, in the absence of direct evidence, it may be proved by the attendant circumstance instances. JOSE C. MIRANDA vs. HON. SANDIGANBAYAN G.R. NO. 154098. July 27, 2005.

FACTS: The Ombudsman placed petitioner Jose C. Miranda then the mayor of Santiago City, Isabela, under preventive suspension for six months from 25 July 1997 to 25 January 1998 for alleged violations of Republic Act No. 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees. Subsequently, then Vice Mayor Amelita S. Navarro filed a Complaint with the Office of the Ombudsman. Vice Mayor Navarro contended that Mayor Miranda committed the felony of usurpation of authority or official functions. Mayor Miranda asserted that he reassumed office on the advice of his lawyer and in good faith. He also averred that, on the day he reassumed office, he received a memorandum from DILG Undersecretary Manuel Sanchez instructing him to vacate his office and he immediately complied with the same. Notably, Mayor Mirandas counter-affidavit also stated that he left the mayoralty post after coercion by the Philippine National Police.

ISSUE: Whether or not good faith may be invoked by the petitioner.

HELD: The court is not a bit persuaded by the posture of the petitioner that he reassumed office under an honest belief that he was no longer under preventive suspension. Petitioners pretense cannot stand scrutiny. Petitioners own affidavit states.Petitioners excuse for violating the order of preventive suspension is too flimsy to merit even a side-glance. He alleged that he merely followed the advice of his lawyer. If petitioner and his counsel had an iota of respect for the rule of law, they should have assailed the validity of the order of suspension in court instead of taking the law into their own hands.

SECOND DIVISION

VICTOR R. REYES, Assistant City Assessor, Department of Assessment, City of Manila, Petitioner,

G.R. No. 152243

Present:

PUNO,

Chairman AUSTRIA-MARTINEZ, - versus CALLEJO, SR., TINGA, and NAZARIO, JJ. HON. JOSE L. ATIENZA, Mayor, City of Manila, ATTY. EMMANUEL R. SISON, Secretary to the City Mayor, and THE COURT OF APPEALS, Respondents. September 23, 2005 Promulgated:

x--------------------------------------------------------------------x

DECISION

TINGA, J.:

The petitioner in this case, Victor R. Reyes (Reyes), identifies himself as the Assistant City Assessor of the City of Manila. The very appropriateness of the nomenclature is crucial to the present petition. Petitioner ultimately hinges the favorable action on his cause on the recognition that he still is the Assistant City Assessor of Manila, a post to which he was appointed in 1989, but which function he has not effectively held since 1994.

The case originated from a complaint filed by petitioner Reyes before the Office of the Ombudsman against respondents Jose L. Atienza, the Mayor of the City of Manila, and Atty. Emmanuel R. Sison, Secretary to the City Mayor. The respondents

were charged with violation of Sections 3(a) and (e) of the Anti-Graft and Corruption Practices Act.[1] The particular act complained of was the appointment by Mayor Atienza of Hernando B. Garcia as Assistant City Assessor on 1 July 1998. According to Reyes, such appointment was illegal, for as of even date, he remained the incumbent Assistant City Assessor of Manila, by virtue of his appointment to the office, on a permanent status, on 3 August 1989. Reyes had originally been designated as Officer-in-Charge of the Office of the City Assessor on 16 January 1987 by then acting Mayor Gemiliano Lopez, Jr.[2] Upon the recommendation of Mayor Lopez, Reyes was appointed on a permanent status as Assistant City Assessor effective 3 August 1989 by then Acting Secretary of Finance Victor C. Macalincag.[3] He remained in office upon assumption of office by then Manila Mayor Alfredo C. Lim[4] in 1992.

In a letter dated 1 October 1993, Reyes reque sted Mayor Lim for a transfer in Quezon City Hall.[5] In the said letter, Reyes further stated [i]f I ever could not transfer until December 31, 1993, then eventually, I would be applying for a retirement effective January 1, 1994.[6] He also requested therein for the approval of sick leave for the months of August and September of 1993, and such request was duly approved.[7]

It appears from the record that since then, Reyes has never been able to actually reassume the functions of Assistant City Assessor. By his own admission, Reyes was prevented from reporting back to work[8] due to the pendency of three complaints[9] filed against him before the Office of the Ombudsman. Notably, an administrative complaint was also pending with the Office of the City Legal Officer against Reyes.[10] The complaints against Reyes filed with the Office of the Ombudsman were all dismissed by March of 1994.

There is no certainty as to the status of Reyess appointment as Assistant City Assessor after 1994. However, the following facts from the record are telling.

In a letter dated 8 April 1994 addressed to Carlos C. Antonio, City Assessor of Manila, Reyes stated as follows:

I would like to request for Clearances needed for my Retirement, be [sic] informed that last October 1993 upon my request to his Honor Mayor ALFREDO S. LIM approved my retirement effective January 1, 1994 including my clearances [sic], but to my surprise the Legal Department of Manila file [sic] a case which was dismissed by the Ombudsman. Hoping for your kind consideration on this matter.[11]

Moreover, it is also undisputed that Mayor Lim made two subsequent appointments to the post of Assistant City Assessor. Angel R. Purisima was appointed to the position on 26 July 1995, and his appointment was approved by the Civil Service Commission (CSC) on 18 September 1995. Purisima resigned on 31 October 1996, and in his stead, Mayor Lim appointed Senen D. Tomada on 26 March 1998. However, the CSC disapproved the appointment of Tomada, it having been made in violation of the Commission on Elections ban on appointments during the election period.[12] Interestingly, the CSC disapproval was made only on 27 July 1998, or 26 days after the appointment of Garcia to the same post by the newly elected Mayor Atienza.

In the meantime, it appears that Reyess application for retirement could not be cleared due to the pending administrative complaint filed with the Office of the City Legal Officer. In April of 1994, Reyes filed a demurrer to the evidence in the said administrative proceeding. Despite repeated urgings, the demurrer remained

unresolved by October of 1995, thus causing Reyes to file a petition for mandamus with the Regional Trial Court of Manila, praying that the demurrer be acted upon by the Office of the City Legal Officer. Pertinently, Reyes alleged the following under oath in his petition:

13. Meanwhile petitioner [Reyes], who retired from the service as City Assessor of Manila, cannot get his retirement pay because he cannot submit a clearance from the office of the public respondent.[13]

The petition for mandamus was dismissed in an Order dated 29 October 1996.[14]

It was only on 28 August 1998 when the administrative complaint against Reyes was dismissed in a decision penned by Mayor Atienza. Still, Reyes alleged that he was never furnished a copy of the decision and that he learned of the dismissal of the complaint only on 5 May 1999. He likewise claimed that his requests for a certified copy of the decision from Manila City Hall have been ignored.[15]

Then, on 20 March 2000, Reyes filed the aforementioned criminal complaint against Mayor Atienza and Sison before the Ombudsman. In the complaint, Reyes characterized as illegal the appointment of Garcia as Assistant City Assessor, noting that he was then and still is actually occupying the said position on the premise that his retirement was never approved or cleared due to the pending administrative case. Reyes also alleged that the appointment smacked of nepotism, as Garcia was the brother-in-law of Sison, the Secretary to Mayor Atienza.

From the record, the allegation also appears that Reyes had filed charges against Atienza and Sison before the CSC,[16] although there is no indication as to the actual nature of the complaint, or its present status.

In a Resolution[17] dated 10 October 2000, the Office of the Ombudsman ordered the dismissal of the complaint for insufficiency of evidence. The Ombudsman concluded that the inferences made by Reyes did not suffice to establish clearly and convincingly that there was a deliberate action on the part of respondents to violate existing rules and regulations duly promulgated by competent authority or an offense in the conduct of their official duties by reason of the inducement, persuasion or influence by another or allowing themselves to be persuaded, induced or influenced to commit such offense or violation, in contravention of Section 3(a) of the Anti-Graft and Corrupt Practices.[18]

The Ombudsman likewise ruled that the requisites for liability under Section 3(e) of the same law had not been established. It was noted that the element of causing undue injury in the discharge of respondents official and/or administrative functions through manifest partiality, evident bad faith, or gross inexcusable negligence was not

sufficiently established. This conclusion was derived from the fact that there were two prior appointments made by Mayor Lim to the position of Assistant City Assessor, which fact refutes the claim of Reyes that he had not yet vacated the post.[19] Finally, the Ombudsman concluded that the allegation of nepotism was without merit.[20]

A Motion for Reconsideration filed by Reyes was denied for lack of merit by the Ombudsman in a Resolution dated 23 November 2000, which also noted that the motion was not timely filed.[21]

The rulings of the Ombudsman were assailed by Reyes in a Petition for Review under Rule 43 of the Rules of Civil Procedure filed with the Court of Appeals. The Court of Appeals Fourteenth Division dismissed the petition in a Decision[22] rendered on 21 August 2001. The appellate court again reiterated the finding that Mayor Lim had made two appointments to the position of Assistant City Assessor prior to the designation of Garcia to the same post by Mayor Atienza in 1998. Thus, it was concluded that Reyes had been terminated or separated from his position as of 26 July 1995, or when Mayor Lim appointed Purisima to the position, as the CSC would not have approved the said appointment had there actually been no vacancy. The Court of Appeals further noted that Garcias appointment was approved by the CSC on 31 August 1998, and that nothing in the record indicated that said appointment was recalled or subsequently declared void and set aside.

A few days prior to the promulgation of the Court of Appeals Decision, Reyes filed a Supplement to Reply with two documents attached thereto. The first was a letter from former Mayor Alfredo Lim, wherein Lim averred that he had not approved any formal retirement application of Reyes. The second document was a certification from the Integrated Records Management Office of the CSC, which noted that there was no record with that office of any notice of separation of service for Reyes. The conclusiveness of these documents was espoused by Reyes in his Motion for Reconsideration before the Court of Appeals, but for naught. In its Resolution[23] denying Reyes motion for reconsideration, the appellate court reiterated its finding that the position of Assistant City Assessor was vacant as of 26 July 1995, when Purisima was appointed to the position.

Hence, the present petition for certiorari under Rule 65, imputing grave abuse of discretion on the part of the Court of Appeals in denying Reyess petition and motion for reconsideration. The Court notes that the resort to the special civil action is patently erroneous, the plain speedy and adequate remedy of a petition for review under Rule 45 being clearly available to Reyes. On this score alone, the present petition is dismissible. Nonetheless, the Court resolves to examine the petition on the merits, with due regard to the precedental value a full-length decision would provide. Before this Court, Reyes reiterates that his complaint filed with the Ombudsman sufficiently establishes the liability of respondents under Section 3(a) and (e) of the AntiGraft and Corrupt Practices Act. The violation of Section 3(a) was established by the appointment of Garcia as Assistant City Assessor, despite the fact that there was no vacancy by reason of Reyess continuous holding of the position. Reyes also claims that his repeated attempts to follow up the status of his administrative cases were ignored. Even though he was subsequently exonerated of the administrative charges, his requests for a copy of the decision have been ignored. Reyes argues that the acts/omissions and nonfeasance committed by the respondents directly violate Section 5(a) of the Code of Conduct and Ethical Standards for Public Officials and Employees. Reyes also claims that the elements of the offense defined in Section 3(e) of the Anti-Graft and Corrupt Practices Act have likewise been established. In that regard, he claims that he had not known of the appointment of Purisima in 1995, and had he known, he would have filed the appropriate case for usurpation. Reyes imputes that the real reason behind Purisimas resignation in 1996 was the knowle dge that his appointment was irregular and illegal. Reyes also claims that Garcias appointment by Atienza was made on 1 July 1998, or twenty-six (26) days before the CSC had disapproved Tomadas appointment to the same post. The precise issue to be resolved by this Court is whether the Ombudsman was correct in concluding there was no probable cause to charge respondents with violation of the Anti-Graft and Corrupt Practices Act. As a general rule, the Court does not interfere with the Ombudsman's determination of the existence or absence of probable cause.[24] As the Court is not a trier of facts, it reposes immense respect to the factual determination and appreciation made by the Ombudsman. In this case, the Ombudsman characterized Reyes s claims as mostly inferential. Many of the allegations now before us are unsubstantiated by evidence and cannot be accorded merit by this Court. These would include the imputations of malice

on the part of respondents in impeding Reyes attempts in following up his clearance for retirement, in refusing to release a certified copy of the decision exonerating him from administrative charges, that nepotism attended the appointment of Garcia to the post of Assistant City Assessor, or that Garcias appointment under re-employment status violated the Rules on Appointment of the Civil Service Commission since he was previously a contractual and not a permanent employee. Even assuming that there is truth to any of these charges, they have not been substantiated to the extent of convincing the Ombudsman that there is probable cause to file criminal cases against respondents. Owing to this paucity in substantiation, we have no reason to disturb the Ombudsmans refusal to lodge a criminal case arising from these premises. Any

possible culpability on the part of respondents hinges on a finding of probable cause that Garcia was appointed with the knowledge that such appointment was illegal, given that there was no vacancy in the post of Assistant City Assessor. Both the Ombudsman and the Court of Appeals upheld respondents argument that the post was indeed vacant at the time of Garcias appointment, and supreme reliance was pl aced on the fact that Atienzas predecessor had made two appointments to the post after Reyess presumed retirement. There is wrinkle, however, to the unhesitating dismissal of this case. There is no definitive proof or smoking gun which decisively esta blishes when Reyes vacated his position, as concluded by the Ombudsman and the Court of Appeals. Assuming that Reyes had resigned his position, acceptance is necessary for resignation of a public officer to be operative and effective. Without acceptance, resignation is nothing and the officer remains in office.[25] The Omnibus Rules on Appointments and Other Personnel Actions promulgated by the CSC requires that in case of resignation, the voluntary written notice of resignation by the employee and the acceptance of resignation in writing by the appointing authority be submitted to the CSC.[26]

If, on the other hand, Reyes had retired from his position as he had previously claimed, such retirement must be understood as in concordance with the GSIS Law, which provides for either compulsory retirement at the age of sixty-five (65)[27] or optional retirement for employees over sixty (60) years of age and with more than fifteen (15) years of government service.[28] In such a case, there is no general demand that retirement meet the approval of the appointing authority, although retirement may be precluded under other circumstances provided by law.[29] However, the applicable Civil Service rules require that a notice stating the date of such retirement be submitted to the Commission.

It is uncertain from the record whether Reyes is entitled under the law to apply for retirement, which would generally not require any approval from the appointing authority in order to become effective. Respondents do not make any allegations that Reyes has reached the age of compulsory retirement. The record is similarly bereft of any proof that Reyes had equivocally resigned his position, or that said resignation was accepted by the appointing authority. Before this Court, respondents rely, as proof of Reyes separation from service, on the letter dated 1 October 1993, wherein Reyes informed Mayor Lim that [i]f I ever could not transfer [to Quezon City Hall] until December 31, 1993, then eventually, I would be applying for a retirement effective January 1, 1994.[30] Respondents narrate in their Comment, [E]ffective January 1, 1994, the petitioner has finally retired from the service because the then Mayor Alfredo S. Lim approved his retirement on October 1993. [31] Yet it is clear from the letter that the option of retirement was not actually exercised then, but merely mentioned as a possibility, requiring further action on the part of Reyes. What Reyes had sought approval in the said letter was his application for sick leave and it was only such sick leave, and not retirement, which was approved by then Mayor Lim in October of 1993. In essence, if indeed Reyes had applied for retirement or submitted his resignation following the normal processes, it would have been easy for respondents to present the countervailing documents which would have conc lusively refuted Reyess claims that he still was the incumbent Assistant City Assessor. The fact that no such documents were presented makes us refrain from concluding that the legal processes pertaining to resignation or retirement were observed in this case. Still, the vitality of Reyess claim of incumbency, crucial to the cause of action in his complaint, is severely undercut by his prior statements, which are not disputed and even at times averred under oath, that indicate that starting 1994, he had considered himself as having been separated from service as Assistant City Assessor. To recapitulate, Reyes had informed the City Assessor of Manila as early as 8 April 1994 that Mayor Lim approved my retirement effective January 1, 1994. [32] Reyes also averred under oath in his petition for mandamus filed in 1995 that he retired from the service as City Assessor of Manila.[33] Reyes had even spent considerable energy since 1994 following up on his clearances for retirement. There is no showing that he has attempted to perform the functions of Assistant City Assessor since 1994. It is extremely disingenuous on the part of Reyes to suddenly claim that all this time, he actually still was the Assistant City Assessor, a position whose functions has since been

assumed by three other persons, the appointments of the first two never having been challenged by him.[34] Still, it must be kept in mind that the central issue in this case is not the viability of Reyess claim to continued incumbency, but the existence of probable cause for respondents criminal culpability by reason of the appointment of Garcia. On that point, we certainly are unable to attribute any malice aforethought or criminal intent of respondents on account of the appointment of Garcia. As the Ombudsman and the Court of Appeals noted, Atienzas predecessor, Mayor Lim, had issued two appointments to the position of the CSC. The first was approved by the CSC, and while the second was disapproved, it was due to the violation of the COMELEC ban on appointments, and not because of any finding that Reyes had not been validly separated from the office.[35] The fact that the appointment of Purisima in 1995 was approved by the CSC gives rise to a presumption that the body was aware that the position was vacant and that the appointment was valid. We are unable to share the absolute belief of the Court of Appeals that this app roval of Purisimas appointment is ipso facto conclusive that the position had already been vacated by Reyes. However, given that nobody appears to have challenged the validity of that appointment or of the subsequent appointment of Tomada on the grounds now alleged by Reyes, we can conclude that Mayor Atienza had every right to assume in good faith that Reyes no longer held the post of Assistant City Assessor. Section 3(a) of the Anti-Graft and Corrupt Practices Act requires a deliberate intent on the part of the public official concerned to violate those rules and regulations duly promulgated by competent authority, or to commit an offense in connection with official duties. On the other hand, Section 3(e) poses the standard of manifest partiality, evident bad faith, or gross inexcusable negligence before liability can be had on that paragraph. Manifest partiality has been characterized as "a clear, notorious or plain inclination or predilection to favor one side rather than the other."[36] Evident bad faith connotes a manifest deliberate intent on the part of the accused to do wrong or cause damage.[37] Gross inexcusable negligence has been defined as negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but wilfully and intentionally with a conscious indifference to consequences in so far as other persons may be affected.[38] Clearly, the standard of culpability imposed by Section 3 of the Anti-Graft and Corrupt Practices Act is quite high, and in this case, insufficiently quantified by the evidence presented by Reyes. Moreover, the conduct of respondents in this case hardly meets these standards, guided as it was, in presumptive good faith by the two previous unchallenged appointments made by Mayor Lim to the same post. There are troubling circumstances that attend the facts of this case, and nothing in this decision should preclude Reyes from pursuing through the proper legal avenues, whatever rights and claims he may have under law, emanating from his permanent

appointment as Assistant City Assessor of Manila and his possible separation from the service. Nonetheless, what the Court is called upon to adjudge is probable cause for criminal culpability of respondents, and under the circumstances, we cannot find such probable cause. WHEREFORE, the Petition is DISMISSED, the assailed Decision not being tainted with grave abuse of discretion. No costs. SO ORDERED. .R. Nos. L-46148-49 April 10, 1996 ATTY. ALFONSO A. OSIAS, petitioner, vs. THE HON. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

HERMOSISIMA, JR., J.:p Petitioner Alfonso A. Osias was originally charged 1 in the Municipal Court 2 of Limay, Bataan, with three (3) Violations 3 of Section 3 (b) of Republic Act 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. After preliminary investigation, the cases were remanded to the Court of First Instance of Bataan and the corresponding Informations 4 were flied on June 11, 1973. The three (3) cases were transferred to the Circuit Criminal Court 5 on August 17, 1973 in accordance with law. Petitioner, upon arraignment, pleaded not guilty to all the charges. In view of the failure of the prosecution to present offended party Lucio Cortez, Criminal Case CCC-V-824 was dismissed for failure to prosecute. We quote the informations in the two remaining cases: Criminal Case No. CCC-V-823 That in or about the month of December, 1979, in the Municipality of Limay, Province of Bataan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused who was then a public officer, he being the chief of the Legal Services Staff of the Bureau of Plant Industry, did then and there willfully, unlawfully and feloniously request or demand and receive from PEDRO AGAS the sum of THREE THOUSAND (P3,000.00) PESOS, in cash as share, percentage or benefit for himself in the proceeds from said Pedro Agas claim for retirement gratuity and workmen compensation under Com. Act No. 186, as amended, and Rep. Act No. 3428, as amended, with the Government Service Insurance System and Workmen's Compensation Commission which granted said claims and paid by the Government with the help of the said accused who had to intervene therein under the law in his official capacity as such public officer, to the damage and prejudice of said Pedro Agas. CONTRARY TO LAW. Criminal Case No. CCC-V-825

That in or about the month of September, 1970, in the Municipality of Limay, Province of Bataan, and within the jurisdiction of this Honorable Court, the above-named accused who was then a public officer, he being the chief of the Legal Services Staff of the Bureau of Plant Industry, did then and there willfully, unlawfully and feloniously request or demand and receive from PEDRO AGAS the sum of THREE THOUSAND (P3,000.00) PESOS, in cash as share, percentage or benefit for himself in the proceeds from said Pedro Agas' claim for medical expenses under Rep. Act No. 3428, as amended, with the Workmen's Compensation Commission which granted said claim and paid by the Government with the help of the said accused who had to intervene therein under the law in his official capacity as such public officer to the damage and prejudice of said offended party, Pedro Agas. CONTRARY TO LAW. Joint trial of these two cases was commenced on October 3, 1973, the same day petitioner was arraigned. Let us unfurl the basic facts: Petitioner was employed by the Bureau of Plant Industry (hereafter, BPI) in 1952. He rose from the ranks and was promoted to the position of Chief of the Legal Services Staff. In 1968, another employee of the BPI by the name of Pedro Agas had developed an acute heart problem. Agas was a plant propagator at the BPI's Lamao Experiment Station in Limey, Bataan. On account of his debilitating coronary illness, Agas applied for terminal leave and disability retirement effective immediately after June 20, 1969. The claim for disability benefits was considered meritorious by the BPI Evaluation Committee which thus recommended payment thereof with the manifestation that "the Bureau does not intend to controvert the said claim for disability compensation." 6 However, passing upon the claim of Agas for reimbursement of medical expenses, the same committee recommended that "claims for medical expenses, if any, incurred by the claimant should be the subject of a formal hearing to ascertain the legality and reasonableness of such medical expenses." 7 The Evaluation Committee Report was signed by all but one of the five committee members. Petitioner signed the said report as the Vice-Chairman of the Evaluation Committee. The records show that Agas was paid P6,000.00 as compensation for disability under the Workmen's Compensation Act on October 30, 1969. 8 The corresponding treasury warrant 9 for the same amount was issued on the same date. The said warrant was received by one Alfonso Agas on October 31, 1969 at 5.30 p.m. 10 It is also borne out by the records that Agas was paid P5,945.53 as retirement gratuity on November 26, 1969. 11 Likewise, the corresponding treasury warrant 12 for the same amount was issued on the same date. While the Warrant Register showed that the said warrant was received by a person with the surname of Lago on December 13, 1969, 13 on record there is another document dated December 4, 1969 acknowledging receipt of the same treasury warrant; this receipt was signed by Pedro Agas who was personally certified and guaranteed by one Encarnacion Gadia, Assistant Chief of the Records Section of the BPI. 14 The claim of Agas for reimbursement of medical expenses was adjudicated upon by the Department of Labor. 15 In an Order 16 dated June 18, 1970, Agas was awarded P6,800.00 as reimbursement of medical expenses incurred for the treatment of his illness. The pertinent portion of that Order reads:

. . . Claimant spent the sum of P6,855 pesos . . . . Considering however that claimant (sic) disability was declared permanent and total in the letter of computation of this Office dated October 9, 1969 and that in the order issued by this office assigning the case to the undersigned for hearing and adjudication it was so stated that claimant's right to reimbursement of medical expenses should not go beyond October 9, 1969, when his disability was pronounced permanent and total, the expenses . . . represented by the receipt dated March 9, 1970 . . . and the other receipt dated March 3, 1970 . . . cannot therefore be allowed. In short claimant is entitled to reimbursement in the amount of . . . P6,800 pesos, respondent having presented no evidence disputing the same. . . . 1 7 There is no document on record that definitively establishes the fact that said medical expenses had been reimbursed or that Agas had actually received payment thereof Agas, however, executed an Affidavit, dated January 26, 1973, wherein he alleged that he received said reimbursement in September, 1970. 18 Furthermore, a prosecution witness, Freddie Jolindo who was then the Chief of the Budget and Fiscal Division of the BPI, testified that said reimbursement for the medical expenses of Agas was indeed paid because he was the one who signed for the treasury warrant in the accounting log book and the one who tendered the treasury warrant to Isidra Agas, wife of Pedro Agas. 19 Jolindo had his accounting ledger at the time of his direct examination. 20 Representing himself in the trial court, petitioner, for his part, desisted from cross examining Jolindo. 21 On the other hand, there was no testimony on the part of Agas pertaining to his receipt of such reimbursement for medical expenses. While he positively alleged receipt thereof in his aforementioned Affidavit, he was not at all in any way queried as to the circumstances surrounding both his receipt of said reimbursement and petitioner's alleged demand for and receipt of a percentage of that amount. Significantly, the private prosecutor inquired only as regards his receipt of his disability compensation and retirement gratuity. We have gone over the transcript of stenographic notes of the direct and cross examination of Pedro Agas held on November 26, 1973, all fifty (50) pages of his testimony, and there is absolutely no mention at all of anything regarding the reimbursement of medical expenses which is the subject of the Information in Criminal Case No. CCC-V-825. Further complicating matters regarding reimbursement of medical expenses of complainant Agas is the fact that on record is a Department of Labor Order, dated April 2, 1974, 22 which while issued pursuant to the same Section 13 of the Workmen's Compensation Act, awarded Agas only the amount of P1,673.00 as reimbursement of medical expenses. The Solicitor General, instead of questioning its authenticity, rationalized in his Comment that the said order referred to a claim for reimbursement of medical expenses filed subsequent to the issuance by the Labor Department of its letter-award dated October 9, 1969. 23 It appears to be the submission of the Solicitor General that there were two reimbursements awarded: one for P6,800.00 under the Order dated June 18, 1970 and another for P1,673.60 under the Order dated April 2, 1974. We have examined both orders, however, and we find that both have been issued on the strength of the same letter award of October 9, 1969, pursuant to the same Section 13 of the Workmen's Compensation Act, and in the same case of complainant Agas denominated as W. C. Case No. R04-114331. We note that, in contrast to his oral testimony, Pedro Agas, in his aforecited Affidavit, executed in January, 1973, manifested that petitioner had been offering help for a fee, to BPI employees like him who had contracted occupational illnesses and are retirable, in order for them to expeditiously receive their retirement benefits; that petitioner had

prepared the papers for his retirement claims and made him sign them so that petitioner could process them; that petitioner received P3,000 on two occasions, i.e., in December, 1969 when Agas received his retirement gratuity in the amount of P5,945.53 and his disability compensation in the amount of P6,000 and in September, 1970 when Agas received his reimbursement for medical expenses in the amount of P6,800 Agas confirmed his allegations only as to his receipt in 1970 of his disability compensation of P6,000.00 and in 1969 of his retirement gratuity of P5,945.53, 24 and he maintained such stance during cross-examination. 25 After the joint trial, petitioner was found beyond reasonable doubt of two counts of Violation of Section 3(b) of Republic Act. No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. The trial court imposed upon petitioner the penalty of One (1) Year imprisonment in each case, with perpetual disqualification from public office, to pay complainant Pedro Agas the sum of P3,000 in each of the two case, and to pay the costs, but without subsidiary imprisonment in case of insolvency. 26 Petitioner appealed 27 in the due time of the decision of the trial court to the Court of Appeals before whom he raised the following assignment of errors: 28 1. The trial court en-erred in declaring the accused-appellant guilty beyond reasonable doubt in the absence of sufficient proof of the essential elements of the crime charged and for not considering the evidence of the defense and other exculpatory facts and circumstances in his favor. 2. The trial court erred in not properly arraigning the accused- appellant, and in not allowing two days for defense counsel to prepare for trial and in denying preliminary investigation to said accused-appellant, which constitute serious irregularities that rendered the proceedings null and void. 3 The trial court erred in holding that the payment and receipt of the checks for the retirement gratuity and reimbursement of medical expenses which were the sources of cash money allegedly given to the accusedappellant were proven by the prosecution. 4. The trial court erred in holding that it is the official duty of accusedappellant to controvert claims under the Workmen's Compensation Act, as amended, against the Bureau of Plant Industry, but did not perform such alleged duty and when the claims were paid he demanded P3,000.00 as payment for services in preparing the papers of the claims of complainants. 5. The trial court erred in pronouncing accused-appellant guilty in one single judgment for two distinct offenses charged in two separate informations and in convicting said accused-appellant on mere conjectures, suspicion and presumptions. 6. The trial court erred in holding that the dismissal of accused- appellant from the services under Letter of Instruction No. 14-A and Presidential Decree No. 6 for administrative charges wherein he was exonerated, which dismissal is on appeal with Malacanang, and other cases not proven, could be considered as evidence of similar acts to prove the acts charged in the instant cases.

7. The trial court erred in not holding that the delay in the enforcement of a claim is an implied admission of lack of merit and that delay in the commencement of a criminal prosecution creates suspicion upon the sincerity, honesty or truthfulness or the motive of the complaining witness. 8. The trial court erred in holding that the complainant was more credible than the accused-appellant and that the sole and uncorroborated testimony of complainant is direct, positive and straightforward and is sufficient basis for convicting accused-appellant. The Court of Appeals 29 rendered judgment affirming in toto the decision of the trial court. In a decision penned by Justice Relova, the appellate court disposed of the third, fourth, sixth and eighth assigned errors by applying the well-entrenched rule that the findings of the lower court with respect to the credibility of witnesses will generally not be disturbed on appeal because the lower court is deemed to have been in a better position to appreciate the same, having seen and heard the witnesses themselves and observed their behavior and manner in testifying, during the trial; it did not find any ground to consider the case as falling under any of the exceptions to this rule. As to the second assigned error, the appellate court found that while it is true that defendant after arraignment is entitled to at least two (2) days to prepare for trial, the said right may be waived either expressly or impliedly, and petitioner did so because there was no objection on record from the defense when the trial court, after arraignment, proceeded to hear the testimonies of the prosecution witnesses present at that time and re-scheduled the cases for hearing in view of the absence of the other prosecution witnesses. 30 In response to the fifth assigned error, the appellate court pointed out that the judgment referred to by petitioner as "one single judgment for two distinct offenses" is actually a decision with two separate findings of guilt in each of the two separate informations filed against petitioner, the nature of which decision is a natural and logical consequence of holding a joint trial. The appellate court disposed of the seventh assigned error by incorporating the finding of the trial court that complainant Pedro Agas is old, hardly literate and faintly able to be assertive and active as to proffer a serious charge against a member of the Bar, hence, the delay in his filing of the cases against petitioner. Such delay, therefore, cannot be made a basis of the conclusion that the offense was not in fact committed although delay in filing a complaint with the authorities generally affects the credibility of the complaining witness. It is unfortunate, though, that the appellate court was not able to thoroughly refute the first assigned error and deemed it sufficient enough to simply quote the testimony of that the elements of the crime have been proven beyond complainant Pedro Agas to prove reasonable doubt. Understandably, thus, while we first resolved to deny 31 the herein petition for review on certiorari of the decision of the Court of Appeals, we reconsidered and set aside such denial and later resolved to give the petition due course on the ground that "appellant-movant has raised certain material points surrounding the alleged commission of the offense, which, if shown to be correct upon the review of the case, may cause or justify reversal or modification of the judgment of conviction." 32 Petitioner, in Criminal Case CCC-V-823, was convicted of violating Republic Act No. 3019 for having requested and received P3,000.00 from Pedro Agas in exchange for petitioner's services in facilitating the application for and release of, the retirement

gratuity and disability compensation of Agas. Petitioner was also convicted of another count of the same violation in Criminal Case CCC-V-825 this time for having requested and received P3,000.00 from Agas in exchange for petitioner's assistance in the processing of petitioner's reimbursement of medical expenses. The Court of Appeal affirmed the twin conviction; hence this petition. After a thorough, careful and deliberate study of the records, we do not find petitioner criminally liable in Criminal Case CCC-V-825 for utter lack of evidence while we affirm his conviction in Criminal Case CCC-V-823 where the finding of his guilt was indeed substantiated by evidence beyond reasonable doubt. There is no sufficient evidence on record that proves that the crime charged in the Information in Criminal Case CCC-V-825 has been committed Nowhere in the testimony of complainant Pedro Agas was it established that he was approached by petitioner to demand payment for allegedly having helped Agas receive his reimbursement of medical expenses. There was testimony as regards petitioner asking for his percentage of the disability compensation in the amount of P6,000.00 and retirement gratuity in the amount of P5,945.53 received by Agas, but there was none whatsoever as regards the reimbursement of medical expenses. To illustrate this point, pertinent portions of the direct examination of Agas are reproduced below: ATTY. PANTALEON: Q: Did any lawyer help you to pursue your claim for retirement benefits? ATTY. OSIAS: The question is leading. COURT: Witness may answer. WITNESS: A: Yes, sir. Q: Who is that lawyer who helped you? A: Atty. Osias, sir. Q: Do you know his full name? A: Yes, sir. Q: What? A: Atty. Alfonso Osias, sir. Q: Will you look around and find out if Atty. Alfonso Osias who helped you is inside the Courtroom and if so, will you please point to him? A: Yes, sir.

COURT : Make it of record that the witness stood up and looking around.. ATTY. PANTALEON: May we make it of record also that the witness is looking towards the direction where Atty. Osias is first seated. COURT : Please do not make side comments, Counsel. Let your client make the identification without being guided. WITNESS: This one, sir. (Witness pointing to a person) COURT: Make it of record that the witness stood up tried to look around the Courtroom until he focused his sight immediately near the witness stand where he pointed to somebody who answered by the name of . . . ATTY. OSIAS: Atty. Alfonso Osias. ATTY. PANTALEON: Q: Did you receive any gratuity, any retirement benefit or gratuity, with the help of Atty. Alfonso Osias? A: Yes, sir. Q: After you received that gratuity for your retirement, did you see again Atty. Osias? A: Yes, sir. Q: Where did you see him? A: In Lamao, sir. Q: Whereat in Lamao? A: He went to our house, sir. Q: Why did he go to your house after you received your gratuity pay? A: He demanded for the payment of his services in connection with my retirement papers, sir.

Q: Did you give him the amount of money he demanded from you? A: Yes, sir, I gave. Q: How much? A: P3,000.00, sir. COURT: Q: How much did you receive as your retirement benefit? A: P6,000.00, sir. ATTY. PANTALEON: Q: You said that you became sick in 1968. When did you receive your retirement benefits?. A: In 1969, sir. Q: Aside from your retirement benefits, did you receive compensation or amount of money from the government in connection with your sickness? A: Yes, sir. Q: For what? A: Workmen's compensation, sir. Q: When did you receive this Workmen's compensation? A: In 1970, sir. Q: How much did you receive as Workmen's compensation in the year 1970? A: P6,000.00, sir. Q: After you received this Workmen's compensation in the sum of P6,000.00, did the accused see you again or rather, did you again see Atty. Alfonso Osias? A: Yes, sir. Q: Where? A: He went to our house, sir. Q: Where is your house? A: In Lamao, sir? Q: Why did he go to your house after you received your workmen's compensation in the amount of P6,000.00?

A: He was demanding for the payment of his services with regards to the preparation of my papers. Q: Why, who helped you in your workmen's compensation case? A: Atty. Osias, sir. Q: The same Atty. Osias whom you pointed to the Court a while ago? A: Yes, sir. Q: When he went to your house in Lamao and asked again for compensation of the services did you give any amount of money?. ATTY. OSIAS: Leading, we object. COURT: May answer. WITNESS: A: Yes, sir. I gave him money. Q: How much? A: P3,000.00, sir. xxx xxx xxx ATTY. PANTALEON: Q: When you received your retirement gratuity in 1969, and Atty. Osias demanded from you and you gave him P3,000.00, was there any person present when you gave him the amount of P3,000.00? A: Yes, sir, there was. Q: Who? A: My wife, sir. xxx xxx xxx Q: In 1970, when you said you gave him, meaning Atty. Alfonso Osias, another sum of P3,000.00 when you received your workman's compensation, who was present if any? A: My wife was present, sir.

Q: Who counted the money in the sum of P3,000.00 delivered to Atty. Alfonso Osias in 1970? A: My wife also counted the money, sir. ATTY. PANTALEON: That will be all, your Honor. 33 Neither was there any mention of the reimbursement of medical expenses during the cross-examination of complainant Agas. The pertinent portions of his testimony under cross examination are also reproduced below: ATTY. OSIAS: Q: Mr. Agas, you stated you saw Atty. Osias again when you received your retirement gratuity? COURT: After. ATTY. OSIAS: Q: . . . after you received your retirement gratuity, is that correct? A: Yes, sir. xxx xxx xxx Q: What month, if you can remember and year? A: In 1969, sir. Q: What did he tell you when he came to you? A: None, Sir. Q: And because Atty. Osias said nothing, what did you do? A: I just gave him the money that he needed, sir. . . . ATTY. OSIAS: Q: When did you first come to know Atty. Osias anyway Mr. Agas? A: In 1968, sir. Q: In what place did you come to know him? A: In Lamao Experiment Station, sir. Q: Was that also the date you claimed he offered to help you in the preparation of your application for compensation and retirement?

A: Yes, sir. Q: How much did you receive for your retirement? A: P6,000.00. Q: What about the compensation, how much did you receive? A: P6,000.00 also, sir. Q: So all in all, you received a total of P12,000.00? A: Yes, sir. . . . xxx xxx xxx ATTY. OSIAS: xxx xxx xxx Q: Mr. Agas, you said you received your workmen's compensation claim in 1970 in the amount of P6,000.00, during the direct examination, is that correct? A: Yes, sir. Q: What date or what month did you receive this compensation? ATTY. PANTALEON: Objection, it has already been answered. COURT : If he can remember, may answer. WITNESS: A: I could no longer remember the date when I received my compensation, sir. ATTY. OSIAS: Q: What about the month, can you remember? A: No, sir. Q: When did you see Atty. Osias after you received your workmen's compensation pay? A: When I received my compensation claim in 1970, sir.
34

Under the Information in Criminal Case No. CCC-V-825, petitioner is charged with the violation of Section 3 (b) of Republic Act No. 3019, otherwise known as the Anti-Graft

and Corrupt Practices Law, which enumerates the corrupt practices of any public officer which are declared unlawful. Among such corrupt practices is Sec. 3(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. The elements of the offense are (1) that the offense was committed by a public officer; (2) that such public officer requested and/or received a gift, present, etc.; (3) that the gift, present, etc. was for the benefit of said public officer; (4) that said public officer requested and/or received the gift, present, etc. in connection with a contract or transaction with the government; and (5) that said officer has the right to intervene in such contract or transaction in his/her official capacity under the law. 35 We agree with the trial court that the first and fifth elements of the offense exist in this case. However, there was no proof preferred during the joint trial that established the second, third and fourth elements aforecited. Complainant Agas did not testify that petitioner offered to expedite the processing of his reimbursement of medical expenses. Although Agas confirmed on both direct and cross examination that petitioner went to his house in Lamao, Bataan in September, 1970, Agas testified that on that occasion, he paid petitioner P3,000.00 for his help which respect to his disability compensation, not the reimbursement of medical expenses. Thus, the only proof there is of petitioner's culpability under the Information in Criminal Case CCC-V-825 is the Affidavit of Pedro Agas which he executed in 1973. Allegations in an affidavit not testified upon in the trial, however, are mere hearsay evidence and have no substantial evidential value. 36 No probative value being attributable to the said Affidavit and complainant Agas not having positively testified on the matter of petitioner's having requested and received a percentage of his medical reimbursement, it was not correct for the trial court to assume that the elements of the offense under the Information in Criminal Case CCC-V-825 have been proven by implication just because the elements of the same offense under the other Information in Criminal Case CCC-V-823 were categorically testified to and established by Agas during his direct and cross examination in the course of the joint trial. No less than evidence beyond a reasonable doubt is required to prove the concurrence of the elements of a violation of Section 3 (b) of Republic Act No. 3019 under the Information in Criminal Case CCC-V-825, which quantum of evidence, we definitively find, the prosecution failed to establish in this case. Evidence beyond a reasonable doubt was preferred before the trial court to prove the concurrence of all the elements of the offense charged in Criminal Case No. CCC-V-823. Indeed we find that there was no sufficient and valid evidence to justify the conviction of petitioner in CCC-V-825, complainant Pedro Agas not having given any testimony establishing petitioner's culpability for allegedly processing the medical reimbursement of Agas for a fee. The lack of testimony of Agas in that respect, however, does not in any way render invalid, incredible, or false, what testimony Agas did give regarding petitioner's alleged assistance in processing the retirement gratuity and disability compensation of Agas for a fee. After all, Agas did not pretend or assert that the medical reimbursement and the disability compensation are one and the same. He just did not give any statement with respect to any circumstances concerning the medical reimbursement. And as regards his testimony on the circumstances involving petitioner's requesting and receiving P3,000.00 in exchange for his assistance in processing his retirement gratuity and disability compensation, complainant Agas was

consistent, direct and simple in his assertions. While Agas has testified that he received the said benefits but certain documents on record show that the same were received by persons other than himself, the inconsistency or contradiction as to that portion of his testimony is only more apparent than real, since Agas himself testified in court that his wife did receive for him some of said benefits. Thus, we affirm the holding of the appellate court that the findings of the trial court as to the credibility of the witnesses "will not be disturbed for the latter is in a better position to appreciate the same, having seen and heard the witnesses themselves and observed their behavior and manner of testifying during the trial." 37 At the very outset, the trial court appreciated the case as one the resolution of which hinged primarily on the matter of credibility. Said the trial court: The resolution of this case hinges primarily on the matter of credibility. The defense interposed by herein accused is that of denial and that the complaints against him were the workings of Director Carangdang. In other words, he would like the Court to believe that Pedro Agas was only the tool to provide the medium by which Director Carangdang can harass and embarass him (accused). While there may have been a bitter rift, as accused puts it, between him and Director Carangdang, a matter which the Court believes not relevant in this case, we are not ready to lend credence to the assertion that the imputations levelled against the accused are not true. Complainant Agas, who at the time he testified was a very sick man, although still in possession of his faculties, was direct, positive and straightforward in telling the Court that Atty. Osias offered to help him in both his retirement and compensation claims and that after the same were approved and the checks were issued out, the accused went to their house at Lamao, Limay, Bataan, demanded and was given P6,000.00. He went there two times and given (sic) P3,000.00 on each occasion. We see no valid reasons not to believe the testimony of Agas on these points. We cannot even surmise why Agas should testify the way he did if he was not telling the truth. . . . Hard to believe, likewise, is the intimation of accused that these cases were filed by herein complainant upon the proddings of Director Carangdang. Pedro Agas, who may be in the twilight of his life due to his illness, could not have been a willing tool of Carangdang or anybody for that matter to destroy herein accused. What benefits could he receive by so doing? He has already retired from the service, received what is due him and very sick at that. Carangdang could not therefore promise anything such as to agree in the plot to falsely charge Osias. But even granting that Agas was acting under the advice of anybody, even Carangdang for that matter, would such matter relieve accused of liability if in fact he perpetrated the acts complained of? We cannot agree, because as we have already stated, we believe the testimony of Pedro Agas. As between complainant Agas and herein accused Osias, we find the former more credible. Osias in the witness stand was very evasive and has shown his lack of candor, sincerity and truthfulness. . . . 38 Long settled in criminal jurisprudence is the rule that when the issue is one of credibility of witnesses, appellate courts will generally not disturb the findings of the trial court,

considering that the latter is in a better position to decide the question, having heard the witnesses themselves and observed their deportment and manner of testifying during the trial, unless it has plainly overlooked certain facts of the case 39 or it failed to weigh accurately all of the material facts and circumstances presented to it for consideration.
40

The trial court, in finding that petitioner did request and did receive P3,000.00 as payment for his services in helping complainant Agas apply for and receive his retirement gratuity and disability compensation, in the processing of which petitioner, as member of the Evaluation Committee that passes upon the validity of such claims, had the right to intervene under the law, correctly appreciated the documentary and testimonial evidence preferred before it. Thus, we do not see any reason for the application of the exception to the just cited rule. It is finally argued that the rule of falsus in uno, falsus in omnibus, should be applied in this case in view of the conviction of petitioner in Criminal Case CCC-V-825 inspite of the lack of evidence justifying such conviction. Complainant Agas, petitioner insists, gave testimony that is fraught with patent inconsistencies and perjured statements which led the trial court to wrongly convict him in Criminal Case CCC-V-825. We do not agree. Contradiction presupposes the existence of positive testimony on a particular matter and the subsequent issuance of statements contrary to the former. In this case, however, complainant Agas did not at all say anything respecting the matter of medical reimbursement. The records bear out that all he testified on was the matter of his claim for retirement gratuity and disability compensation and petitioner's demand for and receipt of a percentage thereof. And as regards the testimony of Agas respecting his retirement gratuity and disability compensation, Agas was credible, unperturbed, consistent and curt in his assertions. Besides it is perfectly within the discretion of the trial court to accept portions of the testimony of a witness as it may deem credible and reject those which it believes to be false. The maxim falsus in uno, falsus in omnibus is not a positive rule of law and is in fact rarely applied in modern jurisprudence [People v. Pacis, 130 SCRA 540 [1984]; People v. Surban, 123 SCRA 218 [1983]). Before this maxim can be applied, the witness must be shown to have willfully falsified the truth on one or more material points. Even then, where he is found to have done so, this does not make his entire testimony totally incredible. The court may still admit and credit those portions worthy of belief depending upon the corroborative evidence and the probabilities and improbabilities of the case (People v. Molina, 213 SCRA 52 [1992]; People v. Arbolante, 203 SCRA 85 [1991]; Peo v. Osias, 199 SCRA 574 [1991]). 41 From the foregoing, we therefore find that on the basis of the testimonial and documentary evidence presented during the joint trial, the guilt of petitioner in Criminal Case CCC-V-823 has been established beyond reasonable doubt. WHEREFORE, petitioner ALFONSO A. OSIAS is hereby ACQUITTED of the offense charged under the Information in Criminal Case No. CCC-V-825. The conviction of petitioner ALFONSO A. OSIAS in Criminal Case No. CCC-V-823 is AFFIRMED. SO ORDERED.

G.R. No. 168544

March 31, 2009

LINDA CADIAO-PALACIOS, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION NACHURA, J.: For review is the Decision1 of the Sandiganbayan dated January 28, 2005 in Criminal Case No. 27434, finding Victor S. Venturanza (Venturanza) and petitioner Linda Cadiao-Palacios guilty beyond reasonable doubt of violation of Section 3(b), Republic Act (R.A.) No. 3019.2 Petitioner was the mayor of the Municipality of Culasi, Province of Antique from July 1998 to June 2001.3 During her administration, there were infrastructure projects that were initiated during the incumbency of her predecessor, then Mayor Aida Alpas, which remained partially unpaid. These included the Janlagasi Diversion Dam, San Luis Diversion Dam, Caridad-Bagacay Road, and San Juan-Tumao Road which were contracted by L.S. Gamotin Construction (L.S. Gamotin) with a total project cost of P2 million. For the said projects, the municipality owed the contractor P791,047.00.4 Relative to the aforesaid projects, petitioner, together with Venturanza, then the Municipal Security Officer, was indicted in an Information for violation of Section 3(b), R.A. No. 3019, the accusatory portion of which reads: That in or about the month of January, 1999, and for sometime prior and subsequent thereto, at the Municipality of Culasi, Province of Antique, Philippines, and within the jurisdiction of this Honorable Court, above-named accused, LINDA CADIAO PALACIOS and VIC VENTURANZA, public officers, being the Municipal Mayor and Security Officer to the Mayor, respectively, of the Municipality of Culasi, Antique, and as such, accused Mayor is the approving authority of contracts involving the Municipality, in such capacity and committing the offense in relation to office, conniving and confederating together and mutually helping with each other, with deliberate intent, with intent of (sic) gain, did then and there willfully, unlawfully and feloniously demand money from Grace Superficial of L.S. Gamotin Construction, which undertook the construction of the following government projects, for the Municipality of Culasi, Province of Antique, to wit: a) Rehabilitation of Tumao-San Juan Road; b) Rehabilitation of Centro Norte-Buenavista Road; and c) Rehabilitation of Bagacay-Buenavista Road which projects amounted to TWO MILLION PESOS (P2,000,000.00), Philippine Currency, which was sourced from the National Disaster Coordinating Council and channeled to the Municipality of Culasi, under condition that the final payments for said projects would not be released, if said amounts would not be given, and consequently received the amounts of FIFTEEN THOUSAND PESOS (P15,000.00) in cash and ONE HUNDRED SIXTY-TWO THOUSAND FOUR HUNDRED PESOS (P162,400.00) in LBP Check No. 3395274, thus accused Mayor Linda Cadiao Palacios, directly or indirectly through her co-accused Vic Venturanza, demanded or received money from a person, in connection with contracts or transactions between the government, wherein the public officer in her official capacity has to intervene under the law. CONTRARY TO LAW.5

On April 16, 2002, both accused voluntarily surrendered and, upon motion, posted a reduced bail bond of P15,000.00 each.6 They were subsequently arraigned wherein they both pleaded "Not Guilty."7 Trial thereafter ensued. During trial, the prosecution presented its sole witnessthe private complainant herself, Grace M. Superficial (Superficial). Her testimony may be summarized as follows: For and on behalf of L.S. Gamotin, she (Superficial) took charge of the collection of the unpaid billings of the municipality.8 Prior to the full payment of the municipalitys obligation, petitioner demanded money from her, under threat that the final payment would not be released unless she complied. Acceding to petitioners demand, she gave the formers husband P15,000.00.9 Sometime in January 1999, petitioner demanded from Superficial the full payment of her total "kickback" which should be 10% of the project cost. Superficial thus proposed that she would deliver a check in lieu of cash, to which petitioner agreed.10 On January 25, 1999, petitioner gave to Neil Superficial, then an incumbent councilor and the husband of private complainant, three checks11 representing the final payment for the construction projects. The following day, Venturanza picked up the check promised by Superficial as payment for the 10% "kickback." In accordance with petitioners instruction, the check was made payable to Venturanza in the amount of P162,400.00. The check was encashed by Venturanza at the Land Bank of the Philippines (LBP), San Jose, Antique Branch, which is about 90-100 kilometers away from Culasi; and the amount was received by Venturanza.12 It was Venturanza also who deposited the three checks, representing the full payment of the project, to the account of Superficial.131avvphi1 The prosecution likewise offered the following documentary evidence: 1) Minutes of the Meeting of Pre-Qualification, [Bid] and Award Committee (PBAC) held at the Municipality of Antique;14 2) Land Bank Check No. 3395274P dated January 26, 1999 in the amount of P162,400.00;15 3) Complainants Consolidated Sur-Reply;16 and 4) Deposit Slip of the three LBP Checks representing full payment of the project.17 The defense, on the other hand, presented the following witnesses: 1) petitioner herself, 2) Venturanza, 3) Engr. Armand Cadigal, 4) petitioners husband Emmanuel Palacios, 5) petitioners Executive Assistant Eugene de Los Reyes, and 6) Atty. Rex Suiza Castillon. Their testimonies may be summarized as follows: Petitioner denied Superficials allegations. She insisted that she only dealt wit h the owner of L.S. Gamotin, Engr. Leobardo S. Gamotin (Engr. Gamotin), relative to the infrastructure projects; thus, she could have made the demand directly from him and not from Superficial. Contrary to Superficials contention, it was Engr. Gamotin him self who claimed payment through a demand letter addressed to petitioner. 18 She added that she only met Superficial when the latter received the checks representing the final payment. She further testified that she never entrusted any highly sensitive matter to Venturanza since her trusted employee was her chief of staff. She also averred that she was not the only person responsible for the release of the checks since the vouchers also required the signatures of the municipal treasurer, the municipal budget officer, and the municipal accountant.19 As far as Venturanza was concerned, she denied knowledge of such transaction as he did not ask permission from her when he used the vehicle of the municipality to go to San Jose.20 Lastly, she claimed that the filing of the case against her was politically motivated.21 Emmanuel Palacios likewise denied having received P15,000.00 from Superficial. He claimed that he was financially stable, being a Forester; the manager of a 200-hectare agricultural land and of a medium piggery establishment; and the owner of a residential house valued at no less than P6 million, a parcel of land and other properties.22 He also

claimed that the institution of the criminal case was ill-motivated as Neil Superficial, in fact, initiated a complaint against him for frustrated murder.23 Venturanza, for his part, admitted that he indeed received the check from Superficial but denied that it was "grease money." He claimed that the said amount (P162,400.00) was received by him in the form of a loan. He explained that he borrowed from Superficial P150,000.00 to finance his trip to Australia so that he could attend the wedding of his nephew; and asked for an additional amount for his expenses in processing his visa.24 Venturanza, however, failed to leave for Australia. Of the total amount of his loan, he allegedly spent P15,000.00 in processing his visa. Venturanza stated that he was able to repay the entire amount immediately because he obtained a loan from the Rural Bank of Aklan, Pandan Branch, to pay the amount he used in applying for his visa. He further testified that he was persuaded by the Superficials to campaign against petitioner.25 On January 28, 2005, the Sandiganbayan rendered a decision convicting both accused of the crime charged, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered finding accused LINDA CADIAOPALACIOS and VICTOR S. VENTURANZA GUILTY beyond reasonable doubt of violation of Section 3 (b) of Republic Act No. 3019, otherwise known as The Anti-Graft and Corrupt Practices Act. Accordingly, in view of the attendant mitigating circumstance of voluntary surrender of both accused, each of them are hereby sentenced to (i) suffer an indeterminate sentence of imprisonment for a period of six (6) years and one (1) month, as minimum, to nine (9) years, as maximum; (ii) suffer all accessory penalties consequent thereto; and (iii) pay the costs. SO ORDERED.26 The Sandiganbayan concluded that the following circumstances established the guilt of both petitioner and Venturanza: 1) that the municipality had outstanding obligations with L.S. Gamotin for the construction of several public works that were completed in 1998; 2) that petitioner was the person authorized to effect the payment of said obligations which, in fact, she did; 3) that Venturanza was a trusted employee of petitioner as he was in charge of the security of the municipal buildings and personnel as well as the adjoining offices; 4) that Venturanza received the three LBP checks representing the full payment to L.S. Gamotin and the LBP check bearing the amount of P162,400.00; 5) that Venturanza went to San Jose, Antique on January 26, 1999 to deposit the three checks and encashed the P162,400.00 check; 6) that Venturanza did not receive the above amount by virtue of a loan agreement with Superficial because there was no evidence to prove it; 7) that Venturanza used the vehicle of the municipality to encash the check in San Jose, Antique; and 8) that the amount of P15,000.00 initially given to Emmanuel Palacios and the P162,400.00 appearing on the check corresponded to the 10% of the total project cost after deducting the 10% VAT and P10,000.00 Engineering Supervision Fee.27 In arriving at this conclusion, the Sandiganbayan gave credence to the testimony of the lone witness for the prosecution. It added that contrary to the claim of the defense, no ill motive could be attributed to her in testifying against petitioner and Venturanza. This is especially true in the case of the latter, as she was related to him. In finding both accused guilty, the Sandiganbayan concluded that, together, they conspired in committing the offense charged. Aggrieved, petitioner and Venturanza separately appealed their conviction. The latter petition was docketed as G.R. No. 168548 which was denied by this Court in a Resolution dated September 26, 2005. The former, on the other hand, is now before us, mainly challenging the legal and factual bases of the Sandiganbayan decision.

The petition lacks merit. Section 3 (b) of the Anti-Graft and Corrupt Practices Act 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: xxxx (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. To be convicted of violation of Section 3(b) of R.A. No. 3019, the prosecution has the burden of proving the following elements: 1) the offender is a public officer; 2) who requested or received a gift, a present, a share, a percentage, or 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.28 At the time material to the case, petitioner was the mayor of the Municipality of Culasi, Antique. As mayor, her signature, both in the vouchers and in the checks issued by the municipality, was necessary to effect payment to contractors (for government projects).29 Since the case involved the collection by L.S. Gamotin of t he municipalitys outstanding obligation to the former, the right of petitioner to intervene in her official capacity is undisputed. Therefore, elements 1, 4 and 5 of the offense are present. 30 Petitioners refutation of her conviction focuses on the evidence appreciated by the Sandiganbayan establishing that she demanded and received "grease money" in connection with the transaction/contract. Section 3(b) 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. Each of these modes of committing the offense is distinct and different from one another. Proof of existence of any of them suffices to warrant conviction.31 The Sandiganbayan viewed the case as one, the resolution of which hinged primarily on the matter of credibility. It found Superficial and her testimony worthy of credence, that petitioner demanded "grease money" as a condition for the release of the final payment to L.S. Gamotin. Aside from the demand made by petitioner, the Sandiganbayan likewise concluded that, indeed, she received the "grease money" through Venturanza. Therefore, petitioner was convicted both for demanding and receiving "grease money." We find no cogent reason to disturb the aforesaid conclusions. Well-settled is the rule that factual findings of the Sandiganbayan are conclusive upon this Court32 save in the following cases: 1) the conclusion is a finding grounded entirely on speculation, surmise and conjecture; 2) the inference made is manifestly an error or founded on a mistake; 3) there is grave abuse of discretion; 4) the judgment is based on misapprehension of facts; 5) the findings of fact are premised on a want of evidence and are contradicted by evidence on record;33 and 6) said findings of fact are

conclusions without citation of specific evidence on which they are based. 34 The instant case does not fall under any of the foregoing exceptions. 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.35 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.36 Between the Sandiganbayan and this Court, the former was concededly in a better position to determine whether or not a witness was telling the truth.37 Petitioner contends that it was improbable for her to have demanded the "grease money" from Superficial, when she could have talked directly to the contractor himself. She insists that Superficial was never a party to the transaction and that Engr. Gamotin was the one who personally facilitated the full payment of the municipalitys unpaid obligation. This contention does not persuade. As held in Preclaro v. Sandiganbayan, 38 it is irrelevant from whom petitioner demanded her percentage share of the project cost whether from the contractor himself or from the latters representative. That petitioner made such a demand is all that is required by Section 3(b) of R.A. No. 3019, and this element has been sufficiently established by the testimony of Superficial.39 Notwithstanding her claim that the prosecution failed to present a special power of attorney to show Superficials authority to represent L.S. Gamotin, petitioner admitted that it was Superficial (or her husband) who received the three checks representing full payment of the municipalitys obligation. Moreover, although the checks were issued to L.S. Gamotin, the deposit slip showed that they were deposited by Venturanza to the account of Superficial. Thus, contrary to petitioners contention, the evidence clearly shows that Superficial was not a stranger to the transaction between the municipality and L.S. Gamotin, for she, in fact, played an important role in the receipt of the final payment of the governments obligation. It was not, therefore, impossible for petitioner to have demanded the "grease money" from Superficial, for after all, it was the latter who received the proceeds of the final payment. This was bolstered by the fact that the P162,400.00 check in the name of Venturanza was encashed by him on the same day that he deposited the three checks. If indeed the amount given to Venturanza was in the form of a loan to finance his trip to Australia, why was the grant of the loan dependent on the receipt of the final payment to L.S. Gamotin?40 We cannot fathom how Superficial could lend money out of the proceeds of the checks which admittedly were received by her not in her own capacity but for and on behalf of another person (L.S. Gamotin). The only plausible explanation is that the amount given to Venturanza was "grease money" taken from the proceeds of the checks issued by the municipality. In holding that petitioner and Venturanza conspired in committing the offense, we agree with the Sandiganbayan that the circumstances enumerated above point to the culpability of the accused. Admittedly, there was no direct evidence showing that petitioner demanded and received the money but the testimony of Superficial, corroborated by the documentary evidence and the admissions of the witnesses for the defense, sufficiently establishes that Venturanza received the money upon orders of petitioner. The sad reality in cases of this nature is that no witness can be called to testify since no third party is ordinarily involved to witness the same. Normally, the only persons present are the ones who made the demand and on whom the demand was made.41 In short, like bribery, the giver or briber is usually the only one who can provide direct evidence of the commission of this crime.42 While it is true that entrapment has been a tried and tested method of trapping and capturing felons in the act of committing clandestine

crimes43 like the instant case, we cannot fault Superficial in not resorting to this method because of the position occupied by petitioner during that time, as well as the power attached to her office. This is especially true in the instant case as the person who made the demand assigned another person to receive the "grease money"; and ordered that the check be issued in the name of another person. One final note. Proof beyond reasonable doubt does not mean evidence that which produces absolute certainty; only moral certainty is required or that degree of proof which produces conviction in an unprejudiced mind.44 We find that such requirement has been met in the instant case. WHEREFORE, premises considered, the petition is hereby DENIED for lack of merit. The Decision of the Sandiganbayan dated January 28, 2005 in Criminal Case No. 27434 is AFFIRMED. SO ORDERED.

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[1] dated May 8, 2000, denying petitioners Motion to Quash2[2] the Information in Criminal Case No. 23848, for violation of Section 3(c) of R.A. No. 3019,3[3] as amended. Petitioner also impugns said courts Resolution4[4] 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[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[6] 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[7] 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 counteraffidavits and other controverting evidence. Thereafter, in a Resolution8[8] 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[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[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[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[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. 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[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[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[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[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[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. G.R. No. 134493 August 16, 2005 BUENCAMINO CRUZ, Petitioners, vs. THE HONORABLE SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, Respondents. DECISION GARCIA, J.: Thru this petition for review on certiorari under Rule 45 of the Rules of Court, petitioner Buencamino Cruz seeks to set aside the Decision dated 30 January 1998 1 of the Sandiganbayan in its Criminal Case No. 22830, finding him guilty of violation of Section 3(e) of Republic Act (R.A.) No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, and its Resolution dated 14 July 1998,2 denying petitioners motion for reconsideration. The factual antecedents are not at all disputed: Following the May 1992 local elections and his proclamation as mayor-elect of the Municipality of Bacoor, Cavite, Victor Miranda sought an audit investigation of the municipalitys 1991-1992 financial transactions. Petitioner Buencamino Cruz served as municipal mayor of the town in 1991 until his term ended in the middle of 1992. Acting on the request, the Commission on Audit (COA) issued COA Order No. 19-1700 constituting a Special Audit Team. In the course of the investigation, the Special Audit Team discovered that certain anomalous and irregular transactions transpired during

the covered period, the most serious being the purchase of construction materials evidenced by Sales Invoices No. 131145 and 131137 in the aggregate amount of P54,542.56, for which payment out of municipal funds was effected twice. The double payments were made in favor of Kelly Lumber and Construction Supply (Kelly Lumber, for short) and were accomplished through the issuance of two (2) disbursement vouchers (DVs), i.e., DV No. 101-92-06-1222 and DV No. 101-92-01-195. Petitioner signed the vouchers and encashed the two (2) corresponding PNB checks, both of which were payable to his order. The findings of the Audit Team were embodied in a 336-page SAO Report No. 93-28, on the basis of which petitioner was charged with violation of Section 3(e) of R.A. 3019. The provision reads: 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 declared to be unlawful: xxx xxx xxx 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. The Information3 against petitioner, filed before the Sandiganbayan and thereat docketed as Criminal Case No. 22830, alleged: That on June 26, 1992, or sometime prior or subsequent thereto, in the Municipality of Bacoor, Cavite, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused Buencamino M. Cruz, a public officer being then the Municipal Mayor of Bacoor, Cavite and while in the performance of his official function, acting in evident bad faith, did then and there wilfully, (sic) unlawfully and criminally pay Kelly Lumber and Construction Supply the amount of Fifty Four Thousand Five Hundred Forty-Two Pesos and 56/100 (P54,542.56), Philippine Currency, despite the fact that said account had been previously paid by the Municipality, thus, causing undue injury to the Government in the amount aforestated. CONTRARY TO LAW. Upon arraignment, petitioner entered a plea of "Not Guilty". In time, trial ensued. In a decision4 dated 30 January 1998, the respondent court found petitioner guilty beyond reasonable doubt of violation of Section 3(e) of R.A. 3019 and sentenced him "to serve imprisonment of Seven (7) years, and One (1), month as minimum, to Ten (10) years of prision mayor as maximum, with consequent perpetual disqualification from holding public office, as provided by law." The anti-graft court predicated its judgment of conviction on the strength of the following main premises: The numerous, other alleged anomalies and irregularities fully detailed and outlined in said S.A.O. Report No. 93-28 did not appear to the Special Audit Team, as meriting prosecution of those who might have been guilty thereof. But, the same report strongly recommended prosecution as notwithstanding . . . the subsequent refund of the total amount of P54,542.56 from the supplier, Kelly Lumber . . . for the alleged double

payment especially due . . . to the fact that the amount was not directly paid to the supplier but the Municipal Mayor, as shown in Exh. "1" for P150,000.00 and Exh. "H" for P20,000.00 and Exhs. "1-1" and "H-1 showing that the said two checks were actually encashed by the Municipal Mayor, respondent herein ( See: p.192 of the S.A.O. Report No. 93-28). A painful examination of Exhs. "B" and "B-1" to "B-11 shows that although there was a total sum due of P31,198.01 and supported by documents under Disbursement Voucher No. 101-9201-194, they are really, only supported by documents showing the statement of the account thereof and yet Sales Invoice No. 131145 was not attached to support the voucher. Besides, said Sales Invoice No. 131145 had already been paid previously as shown by a photocopy of PNB Check No. 214785, dated January 30, 1992 (see. Exh. "B-2-A") which proves that payment was made upon the prior request of the accused Buencamino M. Cruz, and that the said amount of P21,041.56 had already been paid under the same Voucher No. 101-9201-194. Also Exhs. "E", "E-1" to "E-7" show that under Disbursement Voucher No. 1163, dated June 26,1992, payment had been made together with other invoices, per PNB Check No. 197813 in the total sum of P150,000.00; whereas, the same account of P33,501.00 had already been paid on January 30, 1992, thereby, showing that there is double payment and the two checks issued in payment of these two invoices to the accused: Buencamino Mallari-Cruz as payee, shows indubitably, that there was a willful act, with malice aforethought, in having a second payment made, in order that the accused may be able to pocket the money, as he in fact did by encashing the said two checks. For it is likewise evident under the principle RES IPSA LOQUITOR (The thing speaks for itself), namely: that if the money of P54,542.56 were indeed payment for the goods delivered by the supplier-Kelly Lumber and Construction Supply, simple reason and well accepted commercial practice demand for the checks in the first place, to made payable to the suppliers of goods sold in payment thereof. But, why should payment be made to Mayor Buencamino M. Cruz, when he ought not to derive any material benefits, whatsoever, or any pecuniary interest from the transactions entered into by him, for and on behalf of the Municipality, . . . . The only excuse given by the accused when he finally testified in his own defense, in very lame. For the excuse he gave, in explaining the anomaly or irregularity is that he was not aware of the double payment and that, he just signed the voucher for payment, as the last officer to sign the voucher, in order to effect payment thereon, to the supplier . . ., and that it was the duty of the Municipal Treasurer to verify the actual deliveries of the goods sold and their payment afterwards. This may be true, if the ensuing checks issued in payment of the goods covered by the voucher for payment, were made payable, indeed, to the real suppliers of the goods, and not made payable to the Mayor, . . ., and who in fact encashed the checks. The only real defense put up here by the accused is that: The supplier-Kelly Lumber and Construction Supply had subsequently reimbursed the Municipality of the amount of P54,542.56 thereby precluding denial of the double payment as shown in Exh. "1" of the accused, . . . . (Underscoring in the original). With his motion for reconsideration having been denied, per the graft courts resolution of 17 July 1998,5 petitioner is now with us via the instant recourse. Petitioner acknowledges signing the DVs which paved the way for the double payment situation. He also admits encashing the checks corresponding to the DVs in question. He nonetheless urges the setting aside of the assailed decision, anchoring his virtual plea for acquittal on four (4) basic issues, to wit: (1) the fatally flawed Information filed against him; (2) the applicability in his favor of what he tagged as the Arias Doctrine; (3) the absence of bad faith on his part; and (4) the refund of the amount representing overpayment. We have carefully reviewed the records of this case and found nothing therein to warrant a reversal of the challenged decision of the respondent court.

Petitioner maintains, anent the first issue, that the Information filed against him was fatally defective in that it did not allege that he is an officer "charged with the grant of licenses or permits or other concessions." Petitioners contention is flawed by the very premises holding it together. For, it presupposes that Section 3(e) of R.A. 3019 covers only public officers vested with the power of granting licenses, permits or similar privileges. Petitioner has obviously lost sight, if not altogether unaware, of our ruling in Mejorada vs. Sandiganbayan,6 where we held that a prosecution for violation of Section 3(e) of the Anti-Graft Law will lie regardless of whether or not the accused public officer is "charged with the grant of licenses or permits or other concessions". Following is an excerpt of what we said in Mejorada: Section 3 cited above enumerates in eleven subsections the corrupt practices of any public officers (sic) declared unlawful. Its reference to "any public officer" is without distinction or qualification and it specifies the acts declared unlawful. We agree with the view adopted by the Solicitor General that the last sentence of paragraph [Section 3] (e) is intended to make clear the inclusion of officers and employees of officers (sic) or government corporations which, under the ordinary concept of "public officers" may not come within the term. It is a strained construction of the provision to read it as applying exclusively to public officers charged with the duty of granting licenses or permits or other concessions. (Emphasis and words in bracket supplied) At any rate, the Local Government Code, particularly Section 444 (b)(3)(iv and v), Chapter 3, Title II, Book III thereof,7 empowers municipal mayors to issue licenses and permits. Any suggestion that a reference to such power in the information is a condition sine qua non for a successful prosecution for violation of Section 3(e) of RA 3019 has to be rejected. As the Solicitor General aptly observed, matters of law are deemed incorporated or read into the information. Still, with respect to the first issue, petitioner submits that a conviction could arise only for an inculpatory act alleged in the information and duly established in the trial, arguing in this regards that the information alleged that Kelly Lumber was paid twice for the same materials but what was found during the trial was that the said payment was given to petitioner. Pressing the point, petitioner states in fine that a variance obtains between what was alleged in the Information filed in this case and what was proven during trial. We are not persuaded. As held in Socrates vs. Sandiganbayan and People of the Philippines8: xxx Evidentiary facts need not be alleged in the information because these are matters of defense. Informations need only state the ultimate facts; the reasons therefor could be proved during the trial. x x x (Underscoring supplied) And what petitioner took to be a variance between the allegation in the information, i.e., the excess payment was given to Kelly Lumber, and the acts proven, i.e., the payment in excess was given to petitioner, is more apparent than real. The perceived variance cannot plausibly be taken as invalidating the information and necessarily petitioners conviction. As may be noted, the information in question states that "x x x accused Buencamino M. Cruz, a public officer being then the Municipal Mayor of Bacoor, Cavite and while in the performance of his official function, acting in evident bad faith, did then and there willfully, unlawfully and criminally pay Kelly Lumber and Construction Supply the amount of Fifty Four Thousand Five Hundred Forty-Two Pesos and 56/100 (P54,542.56), Philippine Currency x x x". What was found during the trial, however, was that, albeit double payment was eventually made, or appeared to have been made, to Kelly Lumber, the covering checks initially were made payable to petitioner. As a matter

of fact, Kelly Lumber was even made to appear to have refunded and returned the second or double payment, as demonstrated by a Certification to this effect issued on the 19th day of March 1997 and signed by Bacoor Municipal Treasurer Salome U. Esagunde, which Certification reads in its material part, as follows: CERTIFICATION TO WHOM IT MAY CONCERN: THIS IS TO CERTIFY that as per records of this office, Kelly Hardware & Construction Supply paid this office the following: 1. Refund to double payment on Voucher No. 101-92-06-1222, paid under OR#4251401 dated September 30, 1993 P33,500.00 2. Refund to double payment on Voucher No. 101-92-01-195, paid under OR No. 4251402 dated September 30, 199321,041.56 Total (posted at CBV# 101-9309-2273)...P54,542.56 Issued this 19th day of March, 1997 upon request of _____________ for whatsoever legal purpose this may serve. (Signed) SALOME U. ESAGUNDE Municipal Treasurer Moreover, petitioner even admitted in his memorandum9 that "the refund by Kelly Lumber and Construction Supply is the best proof that he did not pay himself for the costs of the supply x x x." It bears stressing that an information needs only allege the acts or omissions complained of as constituting the offense10, in this case, the fact that petitioner made payment to Kelly Lumber twice, without need of going into specifics of how such payment was made. The accompanying details of the process of payment can be established during trial through evidentiary offer. Invoking the lessons taught in Arias vs. Sandiganbayan11, petitioner next argues that he cannot be held guilty of violation of Section 3(e) of RA 3019 for, following the doctrine established in that case, he had every right to rely, to a reasonable extent, on the bona fides of his subordinates, referring to the municipal treasurer and accountant, who prepared the DVs and the checks in question. Petitioners reliance on Arias is very much misplaced. As may be recalled, this Court, in acquitting the accused in Arias, made the following pronouncements: We can, in retrospect, argue that Arias should have probed records, inspected documents, received procedures, and questioned persons. It is doubtful if any auditor for a fairly-sized office could personally do all these things in all vouchers presented for his signature. The Court would be asking for the impossible. 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. If a department secretary entertains important visitors, the auditor is not ordinarily expected to call the restaurant about the amount of the bill, question each guest whether he was present at the luncheon, inquire whether the correct amount of food was served, and otherwise

personally look into the reimbursement vouchers accuracy, propriety, and sufficiency. 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. x x x. There should be other grounds than the mere signature or approval appearing on a voucher to sustain a conspiracy charge and conviction. (Italics in the original; Underscoring supplied). Unlike in Arias, however, there exists in the present case an exceptional circumstance which should have prodded petitioner, if he were out to protect the interest of the municipality he swore to serve, to be curious and go beyond what his subordinates prepared or recommended. In fine, the added reason contemplated in Arias which would have put petitioner on his guard and examine the check/s and vouchers with some degree of circumspection before signing the same was obtaining in this case. We refer to the unusual fact that the checks issued as payment for construction materials purchased by the municipality were not made payable to the supplier, Kelly Lumber, but to petitioner himself even as the disbursement vouchers attached thereto were in the name of Kelly Lumber. The discrepancy between the names indicated in the checks, on one hand, and those in the disbursement vouchers, on the other, should have alerted petitioner - if he were conscientious of his duties as he purports to be - that something was definitely amiss. The fact that the checks for the municipalitys purchases were made payable upon his order should, without more, have prompted petitioner to examine the same further together with the supporting documents attached to them, and not rely heavily on the recommendations of his subordinates. It need no stretching of the mind to understand that the person or entity in whose favor a voucher is processed should also be the payee appearing in the checks issued to satisfy the same. Yet, for still unexplained reasons, petitioner chose to deviate from what to us is an ordinary accounting procedure, doubtless for a consideration less than honest. Apropos the third issue, it is petitioners submission that, while he might have been negligent in the performance of his duties, the prosecution had not, at its end, established his being in bad faith. Whether or not petitioner acted in good or bad faith in effecting what, at bottom, is an unauthorized double payment, addresses a question of credibility. As a general proposition, the determination of credibility is the domain of the trial court, not this Court.12 And it cannot be overemphasized that the respondent court has declared petitioner to have acted with "malice afterthought", a disposition which, in the language of that court, "is evident from checks originally issued in payment for goods paid twice made in favor of the accused himself." 13 Added the respondent court: Indeed by the mere fact that the accused herein had two (2) checks issued to him in his name, and then, collecting the money in cash without any reason therefore (sic), is evident bad faith, as against bonafides (good faith) for his very act of having these two (2) checks in his name runs against the gamut of public accountability . . . . Lest it be overlooked, the offense defined under Section 3 (e) of R.A. 3019 may be committed even if bad faith is not attendant, the elements of the crime being:

(1) that the accused are public officers or private persons charged in conspiracy with them; (2) that the prohibited act/s were done in the discharge of the public officers official, administrative or judicial functions; (3) that they cause undue injury to any party, whether Government or a private person; (4) that such injury is caused by giving any unwarranted benefits, advantage or preference to such party; and (5) that the public officers acted with manifest partiality, evident bad faith or gross inexcusable negligence. 14 In Sistoza vs. Desierto, et al.,15 we held: xxx Evidently, mere bad faith or partiality and negligence per se are not enough for one to be held liable under the law since the act of bad faith or partiality must in the first place be evident or manifest, respectively, while the negligent deed should both be gross and inexcusable. Xxx Given the above perspective, it is abundantly clear that a violation of Section 3(e) of R.A. 3019 may be committed even through negligence provided that said negligence is both gross and inexcusable. Assuming, in gratia argumenti, that petitioner did not act in bad faith, he cannot plausibly deny that his negligence under the premises was not only gross but also inexcusable. For, although the checks were on their face payable to him even as the supporting disbursement vouchers were in the name of Kelly Lumber, petitioner still affixed his signature thereon. It is unthinkable that such irregularity, given his stature and the nature of his position, would have passed him unnoticed. In turn, his subordinates could not have so easily, and with such daring, presented him with a set of questionable documents - as petitioner would want to impress this Court - without his instructions. Finally, it is puerile for petitioner to contend that Kelly Lumbers act of refunding the amount subject of double payment argues against the idea of the government suffering damages. The injury suffered by the government is beyond cavil. This conclusion was aptly explained by the Sandiganbayan in the following wise: Damage to the government in that instance [referring to the alleged double payment] is inevitable for the simple reason that money taken from the coffers was used by someone else for about two years and without paying interest and without authority for its use. (N.B. 19 March 1997 is only two months short of two years from filing of this case). Moreover, refund of the amount subject of the prosecution is not one of those enumerated under Article 89 of the Revised Penal Code 16 which would totally extinguish criminal liability. Article 89 of the Revised Penal Code applies in a suppletory character as provided for under Article 1017 of the same Code. As regards the penalty imposed by the respondent court, we find the same to be proper in point of severity, albeit its employment of the term "prision mayor" is inappropriate. It is proper because Section 9 of R.A. 3019 provides: SECTION 9. Penalties for violations

(a) Any public officer or private person committing any of the unlawful acts or omission enumerated in Sections 3, 4, 5 and 6 of this Act shall be punished with imprisonment for 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 and unexplained wealth manifestly out of proportion to his salary and other lawful income. In the same breath, however, the use of the same term is inappropriate because the penalty of prision mayor is imposable only for felonies punishable under the Revised Penal Code or when a special law specifically provides for such penalty for a given crime. As we have said in People vs. Simon:18 With respect to the first example, where the penalties under the special law are different from and are without reference or relation to those under the Revised Penal Code, there can be no suppletory effect of the rules for the application of penalties under said Code or by other relevant statutory provisions based on or applicable only to said rules for felonies under the Code. In this type of special law, the legislative intendment is clear. The same exclusionary rule would apply to the last given example, Republic Act No. 6539. While it is true that the penalty of 14 years and 8 months to 17 years and 4 months is virtually equivalent to the duration of the medium period of reclusion temporal, such technical term under the Revised Penal Code is not given to that penalty for carnapping. Besides, the other penalties for carnapping attended by the qualifying circumstances stated in the law do not correspond to those in the Code. The rules on penalties in the Code, therefore, cannot suppletorily apply to Republic Act No. 6539 and special laws of the same formulation. (Italics in the original; Underscoring supplied) Republic Act 3019 under which petitioner was prosecuted and convicted is a special law which does not provide for a penalty of "prision mayor" for any of the acts punishable therein. Accordingly, a modification of the decision under review with respect to its penalty component is in order. WHEREFORE, the instant petition is DENIED and the assailed decision and resolution of the Sandiganbayan AFFIRMED, with the modification that petitioner BUENCAMINO MALLARI-CRUZ is hereby sentenced to a prison term of seven (7) years and one (1) month, as minimum, to ten (10) years, as maximum, with perpetual disqualification from holding public office, as provided by law. SO ORDERED.

ANTI SEXUAL HARRASMENT ACT

ATTY. SUSAN M. AQUINO, complainant, vs. HON. ERNESTO D. ACOSTA, Presiding Judge, Court of Tax Appeals, respondent. DECISION SANDOVAL-GUTIERREZ, J.: The present administrative case filed with this Court originated from a sworn affidavitcomplainti[1] of Atty. Susan M. Aquino, Chief of the Legal and Technical Staff of the Court of Tax Appeals (CTA), charging Judge Ernesto Acosta, Presiding Judge of the

same court, with sexual harassment under R.A. 7877 and violation of the Canons of Judicial Ethics and Code of Professional Responsibility. In her affidavit-complaint, complainant alleged several instances when respondent judge sexually harassed her. On November 21, 2000, she reported for work after her vacation in the United States, bringing gifts for the three judges of the CTA, including respondent. In the afternoon of the same day, he entered her room and greeted her by shaking her hand. Suddenly, he pulled her towards him and kissed her on her cheek. On December 28, 2000, while respondent was on official leave, he called complainant by phone, saying he will get something in her office. Shortly thereafter, he entered her room, shook her hand and greeted her, "Merry Christmas." Thereupon, he embraced her and kissed her. She was able to free herself by slightly pushing him away. Complainant submitted the Joint Affidavitii[2] of Ma. Imelda C. Samonte and Anne Benita M. Santos, CTA Tax Specialists, to prove that respondent went to her office that day. On the first working day in January, 2001, respondent phoned complainant, asking if she could see him in his chambers in order to discuss some matters. When complainant arrived there, respondent tried to kiss her but she was able to evade his sexual attempt. She then resolved not to enter his chambers alone. Weeks later, after the Senate approved the proposed bill expanding the jurisdiction of the CTA, while complainant and her companions were congratulating and kissing each other, respondent suddenly placed his arms around her shoulders and kissed her. In the morning of February 14, 2001, respondent called complainant, requesting her to go to his office. She then asked Ruby Lanuza, a clerk in the Records Section, to accompany her. Fortunately, when they reached his chambers, respondent had left. The last incident happened the next day. At around 8:30 a.m., respondent called complainant and asked her to see him in his office to discuss the Senate bill on the CTA. She again requested Ruby to accompany her. The latter agreed but suggested that they should act as if they met by accident in respondents office. Ruby then approached the secretarys table which was separated from respondents office by a transparent glass. For her part, complainant sat in front of respondent's table and asked him what he wanted to know about the Senate bill. Respondent seemed to be at a loss for words and kept glancing at Ruby who was searching for something at the secretary's desk. Forthwith, respondent approached Ruby, asked her what she was looking for and stepped out of the office. When he returned, Ruby said she found what she was looking for and left. Respondent then approached complainant saying, me gusto akong gawin sa iyo kahapon pa. Thereupon, he tried to grab her. Complainant instinctively raised her hands to protect herself but respondent held her arms tightly, pulled her towards him and kissed her. She pushed him away, then slumped on a chair trembling. Meantime, respondent sat on his chair and covered his face with his hands. Thereafter, complainant left crying and locked herself inside a comfort room. After that incident, respondent went to her office and tossed a noteiii[3] stating, sorry, it wont happen again. In his comment, respondent judge denied complainants allegation that he sexually harassed her six times. He claimed that he has always treated her with respect, being the head of the CTA Legal Staff. In fact, there is no strain in their professional relationship.

On the first incident, he explained that it was quite unlikely that complainant would ask him to go to her office on such date in order to give him a pasalubong. With respect to the second incident on December 28, he claimed it could not have happened as he was then on official leave. Anent the third incident, respondent explained that he went to the various offices of the CTA to extend New Years greetings to the personnel. He also greeted complainan t with a casual buss on her cheek and gave her a calendar. In turn, she also greeted him. As to the fourth episode, he averred that he and complainant had been attending the deliberations of the Bicameral Conference Committee at the Senate on the bill expanding the jurisdiction of the CTA. Hence, when the bill was finally approved that particular day, respondent, in jubilation and in the presence of other people, gave complainant a spontaneous peck on her cheek. He could not recall any resentment on her part when he kissed her. She even congratulated him in return, saying Justice ka na Judge. Then he treated her to a lunch to celebrate the event. Respondent recounted several times when they would return to the CTA in the evening after attending the committee hearings in Congress to retrieve complainants personal belongings from her office. Surely, if he had malice in his mind, those instances would have been the perfect opportunities for him to sexually harass her. As to the fifth incident, respondent alleged that he did not call complainant to harass her, but to discuss with her and Elizabeth Lozano, HRMO III, and Elsie T. Forteza, Administrative Officer, the health plan for the CTA officers and employees. The fact that such meeting took place was confirmed by a Certification issued by Lozano.iv[4] Regarding the sixth incident, respondent narrated his version as follows: Complainant arrived in his office past 9 a.m. that day, followed by another court employee, Ruby Lanuza. He proceeded to discuss the CTA Expansion Bill with complainant. Then he went for a while to the rest room. When he returned, Ruby had already left but complainant was still there. Forthwith, he remarked that he forgot to greet her on Valentines Day, the day before. He approached complainant to give her a casual buss on the cheek. But she suddenly stood and raised her arms to cover her face, causing her to lose her balance. So he held her arms to prevent her from falling. Her rejection came as a surprise to him and made him feel quite embarrassed. Shortly, complainant excused herself and left the room. Stunned at the thought that she might misinterpret his gesture, he sent her a short note of apology. Respondent further explained that the structure of his office, being seen through a transparent glass divider, makes it impossible for anyone to commit any improper conduct inside. In a Resolution dated August 21, 2001, this Court referred the instant case to Justice Josefina G. Salonga of the Court of Appeals for investigation, report and recommendation. Justice Salonga set the hearing of the case on November 6, 2001. However, the parties, through counsel, manifested that they will not be adducing any further evidence. On November 7, 2001, Justice Salonga issued an Order directing them to submit their memoranda simultaneously, after which, the case shall be considered submitted for resolution. On January 9, 2002, Justice Salonga forwarded to this Court her Report on Investigation and Recommendation, thus: We find for the respondent.

"The complainant failed to show by convincing evidence that the acts of Judge Acosta in greeting her with a kiss on the cheek, in a 'beso-beso' fashion, were carried out with lustful and lascivious desires or were motivated by malice or ill-motive. It is clear under the circumstances that most of the kissing incidents were done on festive and special occasions. In fact, complainant's testimony that she was sexually harassed on November 21, 2000, is hardly believable. Notably, complainant declared in her affidavitcomplaint that she brought some 'pasalubongs' for the respondent judge from her trip abroad. Therefore, Atty. Aquino could not have been 'taken aback' by the respondent's act of greeting her in a friendly manner and thanking her by way of a kiss on the cheek. Moreover, it was established that Judge Acosta was on official leave of absence from December 26-29, 2000. This was corroborated by Ricardo Hebia, the driver of respondent judge, in his Panunumpa (Affidavit) dated March 26, 2001, where he stated among others, to wit: x x x

"Corollarily, the joint affidavit of Ms. Santos and Ms. Samonte attesting to the fact that respondent dropped by at the third floor of the CTA and greeted them Happy New Year, even if it true, can not be given any evidentiary weight. Clearly, they did not make any categorical statement that they had witnessed or seen Judge Acosta making sexual advances on the complainant. Nor did they even attribute any malicious acts on respondent constituting sexual harassment. "In addition, the respondent admitted that when he handed a calendar and greeted complainant with a buss, complainant reciprocated by greeting him a Happy New Year. The allegation of Atty. Aquino that the respondent merely used the calendars as 'props' to kiss her on the cheek and that she was singled out by respondent is not supported by any convincing evidence. The affidavit of Ms. Aurora U. Aso and Renelyn L. Larga that Ms. Carmen Acosta gave them calendars for the office of Attys. Margarette Guzman and Felizardo O. Consing, is immaterial and irrelevant, as Judge Acosta had stated that he handed to complainant Aquino, a 2001 calendar in the course of greeting her with a buss on the cheek. Said affidavit could not account for the calendars distributed to the other offices in the CTA, more specifically, the Legal and Technical Staff headed by Atty. Aquino. "Moreover, the claim of the complainant that she was sexually harassed immediately after the final reading of the bill anent the expansion of the CTA at the Senate, can not be accorded great evidentiary value. The alleged kissing incident took place in the presence of other people and the same was by reason of the exaltation or happiness of the moment, due to the approval of the subject bill. Quite interesting to note, is that Atty. Aquino reciprocated by congratulating respondent and remarking " justice ka na judge" after the latter had bussed her on the cheek. Complainant even failed to dispute the fact that after the kissing incident, she joined Judge Acosta and his driver for lunch at a seafood restaurant in Luneta. There was even a time that she allowed the respondent judge to accompany her to the office alone and at nighttime at that, to retrieve her car keys and bag when they returned to the CTA after the hearing at the Senate on the CTA expansion bill. These acts are not at square with the behavior of one who has been sexually harassed, for the normal reaction of a victim of sexual harassment would be to avoid the harasser or decline his invitations after being offended. In fact, this occasion could have provided the respondent judge with the right opportunity to commit malicious acts or to sexually harass complainant, but then Judge Acosta never even attempted to do so. Undoubtedly, it could be said that no strained relations existed between Atty. Aquino and Judge Acosta at that moment. "Neither can the alleged continuous call of Judge Acosta on complainant in the morning of February 14, 2001 to see him in his office, be considered as acts constituting sexual harassment. Atty. Aquino failed to state categorically in her affidavit-complaint that

respondent demanded sexual advances or favors from her, or that the former had committed physical conduct of sexual nature against her. The telephone calls were attributed malicious implications by the complainant. To all intents and purposes, the allegation was merely a product of her imagination, hence, the same deserves no weight in law. Indeed, Atty. Aquino's own version, indicates that she well knew that the purpose of the respondent in calling her in the morning of February 14, 2001 was to discuss the CTA Health Plan which was disapproved by the Supreme Court and not for the respondent to demand sexual favors from her. This was corroborated by Atty. Margarette Guzman in her affidavit dated February 28, 2001, attached to the complainant's affidavit, where she stated: x x x

"Finally, while Judge Acosta admitted having pecked Atty. Aquino on her cheek, which was avoided by the latter, the same was not meant to sexually harass her. Judge Acosta's act of extending his post Valentine greeting to complainant was done in good faith and sans any malice. This is so because immediately after the complainant had displayed annoyance to the kissing episode, Judge Acosta immediately extended an apology by way of a handwritten note saying that the incident won't happen again. "Parenthetically, the undersigned is convinced that Ms. Lanuza's affidavit that she supposedly accompanied complainant to respondent's office as she allegedly had a previous 'bad experience' with the latter when he was still an Associate Judge, was merely concocted to add flavor to the baseless imputations hurled against Judge Acosta. The accusation is implausible as Ms. Lanuza did not seem to complain about the alleged bad experience she had with Judge Acosta or relate it to anyone until ten (10) years later. It must be stressed that Ms. Lanuza is a biased-witness who harbored ill feelings against the respondent, as she was reprimanded by Judge Acosta for habitual absenteeism and tardiness in 1996. More importantly, Ms. Lanuza did not even attest that she was a witness to the alleged sexual advances of Judge Acosta. "In all the incidents complained of, the respondent's pecks on the cheeks of the complainant should be understood in the context of having been done on the occasion of some festivities, and not the assertion of the latter hat she was singled out by Judge Acosta in his kissing escapades. The busses on her cheeks were simply friendly and innocent, bereft of malice and lewd design. The fact that respondent judge kisses other people on the cheeks in the 'beso-beso' fashion, without malice, was corroborated by Atty. Florecita P. Flores, Ms. Josephine Adalem and Ms. Ma. Fides Balili, who stated that they usually practice 'beso-beso' or kissing on the cheeks, as a form of greeting on occasions when they meet each other, like birthdays, Christmas, New Year's Day and even Valentine's Day, and it does not matter whether it is Judge Acosta's birthday or their birthdays. Theresa Cinco Bactat, a lawyer who belongs to complainant's department, further attested that on occasions like birthdays, respondent judge would likewise greet her with a peck on the cheek in a 'beso-beso' manner. Interestingly, in one of several festive occasions, female employees of the CTA pecked respondent judge on the cheek where Atty. Aquino was one of Judge Acosta's well wishers. (Annex "8" to Comment, p. 65, Rollo) "In sum, no sexual harassment had indeed transpired on those six occasions. Judge Acosta's acts of bussing Atty. Aquino on her cheek were merely forms of greetings, casual and customary in nature. No evidence of intent to sexually harass complainant was apparent, only that the innocent acts of 'beso-beso' were given malicious connotations by the complainant. In fact, she did not even relate to anyone what happened to her. Undeniably, there is no manifest sexual undertone in all those incidents.v[5] Justice Salonga then made the following recommendation:

Considering the above, the undersigned respectfully recommends that the administrative complaint for sexual harassment and violations of the Canons of Judicial Ethics and the Code of Professional Responsibility be DISMISSED and accordingly, respondent Presiding Judge Ernesto D. Acosta be exonerated therefrom; that in view of these charges which might have tainted the image of the Court, though unsubstantiated they may be, Judge Acosta is WARNED to refrain from doing similar acts, or any act for that matter on the complainant and other female employees of the Court of Tax Appeals, which in any manner may be interpreted as lustful advances. vi[6] We agree with the findings of Justice Salonga. Administrative complaints against members of the judiciary are viewed by this Court with utmost care, for proceedings of this nature affect not only the reputation of the respondents concerned, but the integrity of the entire judiciary as well. We have reviewed carefully the records of this case and found no convincing evidence to sustain complainants charges. What we perceive to have been committed by respondent judge are casual gestures of friendship and camaraderie, nothing more, nothing less. In kissing complainant, we find no indication that respondent was motivated by malice or lewd design. Evidently, she misunderstood his actuations and construed them as work-related sexual harassment under R.A. 7877. As aptly stated by the Investigating Justice: "A mere casual buss on the cheek is not a sexual conduct or favor and does not fall within the purview of sexual harassment under R.A. No. 7877. Section 3 (a) thereof provides, to wit: 'Sec. 3. Work, Education or Training - related Sexual Harassment Defined. - Work, education or training-related sexual harassment is committed by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said Act. a) In a work-related or employment environment, sexual harassment is committed when: 1) The sexual favor is made as a condition in the hiring or in the employment, reemployment or continued employment of said individual, or in granting said individual favorable compensation, terms, conditions, promotions or privileges; or the refusal to grant sexual favor results in limiting, segregating or classifying the employee which in anyway would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employees; 2) The above acts would impair the employee's right or privileges under existing labor laws; or 3) The above acts would result in an intimidating, hostile, or offensive environment for the employee.' "Clearly, under the foregoing provisions, the elements of sexual harassment are as follows:

1) The employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person has authority, influence or moral ascendancy over another; 2) The authority, influence or moral ascendancy exists in a working environment;

3) The employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, or any other person having authority, influence or moral ascendancy makes a demand, request or requirement of a sexual favor. "In her Complaint-affidavit, Reply and Sur-rejoinder, complainant did not even allege that Judge Acosta demanded, requested or required her to give him a buss on the cheek which, she resented. Neither did Atty. Aquino establish by convincing evidence that the busses on her cheek, which she considers as sexual favors, discriminated against her continued employment, or resulted in an intimidating, hostile or offensive environment. In fact, complainant continued to perform her work in the office with the usual normalcy. Obviously, the alleged sexual favor, if there ever was, did not interfere with her working condition (Annexes "9" - "9-FFF"). Moreover, Atty. Aquino also continued to avail of benefits and leaves appurtenant to her office and was able to maintain a consistent outstanding performance. On top of this, her working area which, is at the third floor of the CTA, is far removed from the office of Judge Acosta located at the fourth floor of the same building. Resultantly, no hostile or intimidating working environment is apparent. "Based on the foregoing findings, there is no sufficient evidence to create a moral certainty that Judge Acosta committed the acts complained of; that Atty. Aquino's determination to seek justice for herself was not substantiated by convincing evidence; that the testimony of respondent judge and his witnesses are credible and therefore, should be given weight and probative value; that the respondent's acts undoubtedly do not bear the marks of misconduct, impropriety or immorality, either under R.A. No. 7877 or the Canons of Judicial Ethics and the Code of Professional Responsibility. vii[7] Indeed, from the records on hand, there is no showing that respondent judge demanded, requested or required any sexual favor from complainant in exchange for favorable compensation, terms, conditions, promotion or privileges specified under Section 3 of R.A. 7877. Nor did he, by his actuations, violate the Canons of Judicial Ethics or the Code of Professional Responsibility. While we exonerate respondent from the charges herein, however, he is admonished not to commit similar acts against complainant or other female employees of the Court of Tax Appeals, otherwise, his conduct may be construed as tainted with impropriety. We laud complainants effort to seek redress for what she honestly believed to be an affront to her honor. Surely, it was difficult and agonizing on her part to come out in the open and accuse her superior of sexual harassment. However, her assessment of the incidents is misplaced for the reasons mentioned above. WHEREFORE, respondent Judge Ernesto D. Acosta is hereby EXONERATED of the charges against him. However, he is ADVISED to be more circumspect in his deportment. SO ORDERED.

G.R. No. 146053, April 30, 2008 DIOSCORO F. BACSIN, petitioner, vs. EDUARDO O. WAHIMAN, respondent. FACTS: Petitioner is a public school teacher of Pandan Elementary School. Respondent Eduardo O. Wahiman is the father of AAA, an elementary school student of the petitioner. AAA claimed that on August 16, 1995, petitioner asked her to be at his office to do an errand. Once inside, she saw him get a folder from one of the cartons on the floor near his table, and place it on his table. He then asked her to come closer, and when she did, held her hand, then touched and fondled her breast. She stated that he fondled her breast five times, and that she felt afraid. A classmate of hers, one Vincent B. Sorrabas, claiming to have witnessed the incident, testified that the fondling incident did happen just as AAA related it. In his defense, petitioner claimed that the touching incident happened by accident, just as he was handing AAA a lesson book.6 He further stated that the incident happened in about two or three seconds, and that the girl left his office without any complaint. CSC found petitioner guilty of Grave Misconduct (Acts of Sexual Harassment), and dismissed him from the service. Specifically, the CSC found the petitioner to have committed an act constituting sexual harassment, as defined in Sec. 3 of Republic Act No. (RA) 7877, the AntiSexual Harassment Act of 1995. CA determined that the issue revolved around petitioners right to due process, and based on its finding that petitioner had the opportunity to be heard, found that there was no violation of that right. The CA ruled that, even if petitioner was formally charged with disgraceful and immoral conduct and misconduct, the CSC found that the allegations and evidence sufficiently proved petitioners guilt of grave misconduct, punishable by dismissal from the service. Petitioner argues that the CSC cannot validly adjudge him guilty of an offense, such as Grave Misconduct (Acts of Sexual Harassment), different from that specified in the formal charge which was Misconduct. He further argues that the offense of Misconduct does not include the graver offense of Grave Misconduct. ISSUE: WON petitioner is guilty of Sexual Harassment HELD: The formal charge, while not specifically mentioning RA 7877, The Anti-Sexual Harassment Act of 1995, imputes on the petitioner acts covered and penalized by said law. Contrary to the argument of petitioner, the demand of a sexual favor need not be explicit or stated. In Domingo v. Rayala, it was held, It is true that this provision calls for a demand, request or requirement of a sexual favor. But it is not necessary that the demand, request, or requirement of a sexual favor be articulated in a categorical oral or written statement. It may be discerned, with equal certitude, from the acts of the offender. The CSC found, as did the CA, that even without an explicit demand from petitioner his act of mashing the breast of AAA was sufficient to constitute sexual harassment. Moreover, under Section 3 (b) (4) of RA 7877, sexual harassment in an education or training environment is committed (w)hen the sexual advances result in an intimidating, hostile or offensive environment for the student, trainee or apprentice. AAA even testified that she felt fear at the time petitioner touched her.

In grave misconduct, the elements of corruption, clear intent to violate the law, or flagrant disregard of established rule must be manifest.14 The act of petitioner of fondling one of his students is against a law, RA 7877, and is doubtless inexcusable. The particular act of petitioner cannot in any way be construed as a case of simple misconduct. He is dismissed from service Petitioner was not denied due process of law, contrary to his claims. The essence of due process is simply an opportunity to be heard, or, as applied to administrative proceedings, an opportunity to explain ones side or an opportunity to seek for a reconsideration of the action or ruling complained of. It is clear that petitioner was sufficiently informed of the basis of the charge against him, which was his act of improperly touching one of his students. Thus informed, he defended himself from such charge. The failure to designate the offense specifically and with precision is of no moment in this administrative case.

Domingo vs. Rayala 546 SCRA 90

Facts: Ma. Lourdes T. Domingo (Domingo), then Stenographic Reporter III at the NLRC, filed a Complaint for sexual harassment against Chairman Rogelio I. Rayala of the National Labor Relations Commission (NLRC).

Rayala, however, posits that for sexual harassment to exist under RA 7877, there must be: (a) demand, request, or requirement of a sexual favor; (b) the same is made a pre-condition to hiring, re-employment, or continued employment; or (c) the denial thereof results in discrimination against the employee.

Issue: Did Rayala commit sexual harassment?

Held: Yes, Rayala committed sexual harassment.

Ratio:

It is true that Section 3, RA 7877, calls for a demand, request or requirement of a sexual favor. But it is not necessary that the demand, request or requirement of a sexual favor be articulated in a categorical oral or written statement. It may be discerned, with equal certitude, from the acts of the offender. All of the acts of Rayala resound with deafening clarity the unspoken request for a sexual favor.

Likewise, contrary to Rayalas claim, it is not essential that the demand, request or requirement be made as a condition for continued employment or for promotion to a higher position. It is enough that the respondents acts result in creating an intimidating, hostile or offensive environment for the employee.

TERESITA G. NARVASA, Petitioner, vs. BENJAMIN A. SANCHEZ, JR., Respondent. G.R. No. 169449; March 26, 2010 Facts: The case stemmed from three cases of sexual harassment filed separately against respondent by petitioner along with Mary Gay P. de la Cruz and Zenaida M. Gayaton, who are also employees of the LGU. Gayaton received a text message while she was passing respondents car in front of the municipal hall. The message said, Pauwi ka na ba sexy? Gayaton later verified through respondents clerk, Alona Agas, that the sender of the message was respondent. Gayaton eventually received several messages from respondent stating: (1) I like you; (2) Have a date with me; (3) Dont tell to others that I told that I like you because nakakahiya; (4) Puso mo to pag bigay moto sakin, I would be very happy and (5) I slept and dreamt nice things about you. Based on the investigation conducted by the LGUs Committee on Decorum and Investigation (CODI), respondent was found guilty of all three charges by the Municipal Mayor. For the offenses committed against De la Cruz and Gayaton, respondent was meted the penalties of reprimand for his first offense of light harassment and 30 days suspension for his first offense of less grave sexual harassment. His transgression against petitioner, however, was deemed to be grave sexual harassment for which he was dismissed from the government service. As far as petitioners complaint was concerned, she asserted that during a field trip of officers and members of the St. Joseph Multi-Purpose Cooperative to the Grotto Vista Resort in Bulacan, respondent pulled her towards him and attempted to kiss her. Petitioner resisted and was able to escape the clutches of respondent to rejoin the group that they were travelling with. Respondent apologized to petitioner thrice regarding that incident. On appeal, the Civil Service Commission (CSC) passed only on the decision in the case filed by petitioner since, under the CSC rules, the penalty of reprimand and/or suspension of not more than 30 days cannot be appealed. The CSC dismissed the appeal but modified the Mayors order by holding respondent guilty of grave misconduct instead of grave sexual harassment. The same penalty of dismissal from the service, however, was meted out to respondent. Respondents next recourse was to the CA which partially granted his appeal. The CA modified the CSC resolution, finding respondent guilty only of simple misconduct. Accordingly, the penalty was lowered to suspension for one month and one day. Petitioner then appealed to the Supreme Court the downgrading of respondents offense to simple misconduct.

Issue: Whether the acts committed by respondent against petitioner (since the CSC resolution only touched upon petitioners complaint) constitute simple misconduct or grave misconduct? Held: The respondent was found guilty of grave misconduct and is ordered dismissed from the service with forfeiture of retirement benefits except accrued leave credits, if any, and with prejudice to re-employment in any branch or instrumentality of the government, including governmentowned and controlled corporations. The Supreme Court disagreed with the CA that neither corruption, clear intent to violate the law or flagrant disregard of an established rule attended the incident in question. RA 7877, the AntiSexual Harassment Act of 1995, took effect on March 5, 1995. Respondent was charged with knowledge of the existence of this law and its contents, more so because he was a public servant.