That on or about December 19, 1995, and for sometime prior or subsequent thereto at Toledo City, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused MANUEL G. BARCENAS, a high-ranking public officer, being a Vice-Mayor of Toledo City, and committing the offense in relation to office, having obtained cash advances from the City Government of Toledo in the total amount of SIXTY-ONE THOUSAND SEVEN HUNDRED SIXTY FIVE PESOS (P61,765.00), Philippine Currency, which he received by reason of his office, for which he is duty bound to liquidate the same within the period required by law, with deliberate intent and intent to gain, did then and there, willfully, unlawfully and criminally fail to liquidate said cash advances of P61,765.00, Philippine Currency, despite demands to the damage and prejudice of the government in the aforesaid amount.3
WE find the demurrer to evidence well taken.
The testimony of the prosecution's lone witness City Auditor Manolo Tulibao confirming his Report (Exhibit "D") that the accused had indeed liquidated his cash advances did not help the prosecution but rather weakened its cause of action against the accused. At the time this case was filed in Court, the accused had already liquidated his cash advances subject matter hereof in the total amount of P61,765.00. Hence, We find the element of damages wanting in this case.
PREMISES CONSIDERED, the Demurrer to Evidence is hereby granted and this case is hereby ordered DISMISSED.7
SECTION 89.Limitations on Cash Advance. -- No cash advance shall be given unless for a legally authorized specific purpose. A cash advance shall be reported on and liquidated as soon as the purpose for which it was given has been served. No additional cash advance shall be allowed to any official or employee unless the previous cash advance given to him is first settled or a proper accounting thereof is made.
SECTION 128. Penal Provision. -- Any violation of the provisions of Sections 67, 68, 89, 106, and 108 of this Code or any regulation issued by the Commission [on Audit] implementing these sections, shall be punished by a fine not exceeding one thousand pesos or by imprisonment not exceeding six (6) months, or both such fine and imprisonment in the discretion of the court. (Emphasis supplied.)
5. LIQUIDATION OF CASH ADVANCES5.1 The AO (Accountable Officer) shall liquidate his cash advance as follows:5.1.1 Salaries, Wages, etc. - within 5 days after each 15 day/ end of the month pay period.
5.1.2 Petty Operating Expenses and Field Operating Expenses - within 20 days after the end of the year; subject to replenishment during the year.
5.1.3 Foreign Travel - within 60 days after return to the Philippines.
Failure of the AO to liquidate his cash advance within the prescribed period shall constitute a valid cause for the withholding of his salary.
x x x x5.7 When a cash advance is no longer needed or has not been used for a period of two (2) months, it must be returned to or deposited immediately with the collecting officer.
5.8 All cash advances shall be fully liquidated at the end of each year. Except for petty cash fund, the AO shall refund any unexpended balance to the Cashier/Collecting Officer who will issue the necessary official receipt.
x x x x
9. DUTIES AND RESPONSIBILITIES OF THE COA AUDITOR
x x x x9.6 Upon failure of the AO to liquidate his cash advance within one month for AOs within the station and three months for AOs outside the station from date of grant of the cash advance, the Auditor shall issue a letter demanding liquidation or explanation for non-liquidation.9.7 If 30 days have elapsed after the demand letter is served and no liquidation or explanation is received, or the explanation received is not satisfactory, the Auditor shall advise the head of the agency to cause or order the withholding of the payment of any money due the AO. The amount withheld shall be applied to his (AO's) accountability. The AO shall likewise be held criminally liable for failure to settle his accounts.15 (Emphasis supplied.)
In the case of the herein respondents, however, the dismissal of the charge against them was one on the merits of the case which is to be distinguished from other dismissals at the instance of the accused. All the elements of double jeopardy are here present, to wit: (1) a valid information sufficient in form and substance to sustain a conviction of the crime charged, (2) a court of competent jurisdiction, and (3) an unconditional dismissal of the complaint after the prosecution had rested its case, amounting to the acquittal of the accused. The dismissal being one on the merits, the doctrine of waiver of the accused to a plea of double jeopardy cannot be invoked.
It is clear to Us that the dismissal of the criminal case against the private respondents was erroneous.
As correctly stated in the Comment of the Acting Solicitor General, the accused were not charged with substitution of genuine "tarjetas" with false ones. The basis for the accusation was that the accused entered false statements as to the weight of the sugar cane loaded in certain cane cars in "tarjetas" which were submitted to the laboratory section of the company. The act of making a false entry in the "tarjetas" is undoubtedly an act of falsification of a private document, the accused having made untruthful statements in a narration of facts which they were under obligation to accomplish as part of their duties - Ernesto de la Paz, as overseer of Hda. Malisbog, and the other accused as scalers of the offended party, the Hawaiian-Philippine Company, thereby causing damage to the latter.
However erroneous the order of respondent Court is, and although a miscarriage of justice resulted from said order, to paraphrase Justice Alex Reyes in People vs. Nieto, 103 Phil. 1133, such error cannot now be righted because of the timely plea of double jeopardy.22
Endnotes:
1Rollo, pp. 22-28; penned by Associate Justice Godofredo L. Legaspi and concurred in by Associate Justices Efren N. Dela Cruz and Norberto Y. Geraldez.
2 GOVERNMENT AUDITING CODE OF THE PHILIPPINES (June 11, 1978).
3 Records, pp. 1-2.
4 Id. at 277-279.
5 Id. at 300.
6 Id. at 303-310.
7 Rollo, p. 27.
8Id. at 9.
9 Section 23, Rule 119 of the Rules of Court provides:
Section 23. Demurrer to evidence. -- After the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer to evidence filed by the accused with or without leave of court. x x x
10 Dayap v. Sendiong, G.R. No. 177960, January 29, 2009, 577 SCRA 134, 147.
11 Id.
12 Sanvicente v. People, 441 Phil. 139, 147-148 (2002).
13 Id.
14 Effective May 3, 1990.
15 This provision is reiterated in COA Circular No. 92-382 (effective July 3, 1992) which specifically governs the cash advances of local government officials. Section 48 (k) states:
Sec. 48. Rules on grant, use, and liquidation of cash advances. - In the granting, utilization, and liquidation of cash advances the following shall be observed: x x x
x x x x
(k) The cash advances shall be liquidated as follows:
· Salaries, wages, etc. - within 5 days after each 15 days/end of the month pay period.
· Petty operating expenses - within 20 days after the end of the year; subject to replenishment during the year.
· Foreign Travel - within 60 days after return to the Philippines.
16 The rationale is similar to that of Article 218 (Failure of Accountable Officer to Render Accounts) of the Revised Penal Code where misappropriation is not an essential element of said felony (Luis B. Reyes, The Revised Penal Code, Book II 2001 at 409). In United States v. Saberon (19 Phil. 391 1911 cited in Reyes at 409), Section 1 of Act No. 1740 punished, among others, the failure to render an account by an accountable public officer. In construing this penal provision, we ruled--
Section 1 of Act No. 1740, a violation of which is charged against the defendant, literally provides as follows:
"Any bonded officer or employee of the Insular Government, or of any provincial or municipal government, or of the city of Manila, and any other person who, having charge, by reason of his office or employment, of Insular, provincial, or municipal funds or property, or of funds or property of the city of Manila, or of trust or other funds by law required to be kept or deposited by or with such officer, employee, or other person, or by or with any public office, treasury, or other depositary, fails or refuses to account for the same, or makes personal use of such funds or property, or of any part thereof, or abstracts or misappropriates the same or any part thereof, or is guilty of any malversation with reference to such funds or property, or through his abandonment, fault, or negligence permits any other person to abstract, misappropriate, or make personal use of the same, shall, upon conviction, be punished by imprisonment for not less than two months nor more than ten years and, in the discretion of the court, by a fine of not more than the amount of such funds and the value of such property."
x x x [T]rue it is that the unjustified refusal to render an account may produce a suspicion that there are at least irregularities in the officer's bookkeeping, but neither is this in itself conclusive proof of misappropriation, nor does the law in imposing punishment in any wise take into account the more or less correct condition of the funds which may be in his charge. The law makes the mere fact of that refusal a crime and punishes it as such, in absolute distinction from the other fact, entirely immaterial to the case, as to whether or not the funds in the safe entrusted to the officer are intact. So true is this that, although such funds are found to be intact and the official having them in charge is found not to have committed the smallest or most insignificant defalcation, still he would not be exempt from the criminal liability established by law if he refused or failed to render an account of said funds on being requested to do so by competent authority. The reason for this is that Act No. 1740, in so far as its provisions bearing on this point are concerned, does not so much contemplate the possibility of
malversation as the need of enforcing by a penal provision the performance of the duty incumbent upon every public employee who handles government funds, as well as every depositary or administrator of another's property, to render an account of all he receives or has in his charge by reason of his employment. x x x" (Id. at 394-396).17 Central Bank of the Philippines v. Court of Appeals, 253 Phil. 39, 49 (1989).
18 32 Phil. 619 (1915).
19 Act No. 1508.
20 Supra note 18 at 622-623.
21 165 Phil. 847 (1976).
22 Id. at 854-855.