G.R. No. 208137, June 08, 2016
MARIA CECILIA OEBANDA, EXECUTIVE DIRECTOR AND/OR THE OCCUPANTS AND EMPLOYEES OF VISAYAN FORUM FOUNDATION, INC., Petitioners, v. PEOPLE OF THE PHILIPPINES, Respondent.
D E C I S I O N
CARPIO, ACTING, C.J.:
You are hereby commanded to make an immediate search in the day time of the premises above-described and forthwith seize and take possession of the following personal property:In the afternoon of 31 August 2012, the NBI implemented the search warrant against Visayan Forum and seized more than 30 boxes of documents, as well as the computers of the finance manager, finance officer, and administration officer.
a) Following Books of Accounts and records covering periods from 2005-2011: General Ledger, Subsidiary Ledger on Advances from Employees, Bank Statements, Reconciliation Statements, Cash Disbursement Books, Check Vouchers, Journal Vouchers, Daily Time Records, Service Contract of all Employees, Service Contracts of all Contractors billed to the US AID Port Project, Fund Accountability Statements;
b) Desktops and Laptops of the Finance Manager, Finance Officer, Bookkeeper and Administration Officer;
c) Unused pre-printed Official Receipts, Official Receipts and Petty Cash Vouchers which can be bought from bookstore, VFFI Cash Vouchers and Stationeries;
and bring said property to the undersigned to be dealt with as the law directs.
This Search Warrant should be valid for ten (10) days from date of issuance.6ChanRoblesVirtualawlibrary
Atty. Villasfer: Your Honor, this document is the Joint Application for Search Warrant which I executed together with agent Atty. Erickson Donn R. Mercado. Your Honor, last August 29, 2012 at around 10:00 o'clock in the morning we conducted a Surveillance together with the auditors from BF Medina. Atty. Erickson Mercado and I posed as one of the staff of the auditing firm and went to the subject area and we acted as auditors and we personally observed the documents and the rooms in the buildings and we saw the other documents and unused receipts fabricated by the VFFI, Your Honor.The other applicant, NBI Agent Mercado, corroborated NBI Agent Villasfer's testimony and explained what he had observed from the surveillance. The relevant portions of his testimony provide:
x x x x
Court: When you went to the premises which you wanted to be searched at No. 18 12th Avenue, Brgy. Socorro, Cubao, Quezon City, what have you seen or what have you observed?
Atty. Villasfer: Your Honor, when we conducted the auditing, we saw from the documents presented to us located at the building, at the back of the compound because there are two (2) buildings, Your Honor. At the ground floor, we saw the altered documents. These are receipts being altered and fabricated for purposes of their audit being conducted by the B.F. Medina and Company. Furthermore, we went there to verify the information given by the witnesses.
x x x x
Court: What other things have you seen when you went there at the subject premises?
Atty. Villasfer: Official Receipts, Your Honor, Books of Account and records covering period from 2005 to 2011; General Ledger, Subsidiary Ledger on Advances from Employees, Bank Statements, Reconciliation Statements, Cash Disbursement Books, Cash Vouchers, Journal Vouchers, Daily Time Records, Service Contract of all Employees, Service Contracts of all Contractors billed to the US AID Port Project, Fund Accountability Statements, Desktops and Laptops of the Finance Manager, Finance Officer, Bookkeepers and Administrative Officer, unused pre-printed Official Receipts, Official Receipts and Petty Cash Vouchers which can be bought from bookstores, VFFI Cash Vouchers and Stationeries, Your Honor.
Court: Earlier, you said that you have access to the folders? Atty. Villasfer: Yes, Your Honor.
Court: Please clarify. Were you able to really examine one by one all these things, that's why you were able to identify?
Atty. Villasfer: Yes, Your Honor. We opened the boxes and examined the folders, and we personally verified and [saw] the Official Receipts, altered documents are there, Your Honor.13 (Emphasis supplied)
x x x xThe records also show that the NBI Agents' two witnesses, Villacorte and Aguilar, submitted their respective affidavits and were subjected to the same probing questioning by the trial judge. The testimony of Villacorte states:
Court: Earlier you heard your co-applicant Atty. Villasfer testified, what can you say about his testimony?
Atty. Mercado: Yes, Your Honor, I confirmed the truthfulness of the statements being made by my co-applicant and in addition, Your Honor, in the course of our surveillance and investigation, we also have a chance to photocopy these receipts, these documents from VFFI and we were able also to make a sketch of the place, particularly Agent Villasfer together with our one witness, they were able to go to the second, third floors of both buildings. In our application, we have the attached sketch of the building, Your Honor. And, in addition, Your Honor, I also observed the demeanor of the people there, elusive/evasive because we posed as members or staff of the auditing company, we can freely loiter around without being detected that we are NBI Agents. We are aware that the people there will not question us considering that they are familiar with new faces since the auditors bring with them staff, their OJTs when they go there. So in that case, we can freely access all possible rooms where these documents subject of this Application for Search Warrant are kept.14ChanRoblesVirtualawlibrary
x x x xAguilar, one of the auditors that was with the NBI Agents when Visayan Forum was audited, gave a more detailed picture of the fraud indicators which she had observed in the course of her audit of Visayan Forum. The relevant portions provide:
Court: Do you affirm and confirm that you have voluntarily executed your Affidavit without fear or pressure from anyone?
Ms. Villacorte: Yes, Your Honor.
Court: Now, you tell me how did you become a witness here?
Ms. Villacorte: Because I do not want to become a part of the crime because I might get involve, Your Honor.
Court: Why, what did you do?
Ms. Villacorte: I resigned from the Visayan Forum last July 15, 2012, Your Honor.
Court: How were the NBI Agents able to get in touch with you in order to utilize you as a witness now?
Ms. Villacorte: Because at the time of the audit, the auditors came to know me because I was still there, Your Honor.
Court: Why did they single you out, why not any other employee or employees?
Ms. Villacorte: Because I was the bookkeeper of US AID, Your Honor. Court: How many bookkeepers are there in your office, if you know?
Ms. Villacorte: The bookkeepers are one of our project bases, Your Honor, and, I was the one handling the USAID department, Your Honor.
x x x x
Court: x x x. Those pre-printed receipts the applicants want now to be seized, where are those said receipts?
Ms. Villacorte: In the locker, Your Honor. Court: You are sure about that?
Ms. Villacorte: We have not used it yet and the[y] were left, and that is what they will use just in case there were remaining unliquidated accounts, Your Honor.
Court: What you did was you used those booklets to cover for the other expenses of the VFFI?
Ms. Villacorte: Yes, Your Honor.
x x x x
Court: And where are those unused receipts?
Ms. Villacorte: Before the auditors came, we placed those unused receipts in the boxes.
Court: Including those partially used receipts in a booklet?
Ms. Villacorte: Yes, Your Honor, x x x.
x x x x
Court: As of the date of the application for the Search Warrant you were no longer connected with the VFFI?
Ms. Villacorte: Yes, Your Honor.
Court: By the way, all these documents stated by the other witness Ms. Aguilar regarding the things that were asked by Mrs. Oebanda about the pre-printed receipts, booklets, etcetera, pertaining to questions and answers numbers 23 to 27 of your Sinumpaang Salaysay quoted as follows:
"23. T: Bakit kayo ipinatawag ni Mrs. Oebanda kung natatandaan mo?
S: Sinabi ngapo niya sa amin na may mga auditors na darating para i-audit ang USAID fund. Nagbigay po sya ng instruction na kailangan punuan ng mga resibo an[g] mga unliquidated na cash advances."
"24. T: Anong ibig kahulugan ngpunuan ng resibo?
S: Ibig pong sabihin ay maghanap o gumawa po kami ng resibo at pagkatapos ay gagawa[n] din po namin ng liquidation report at iyon naman ang i-attach namin sa mga vouchers."
"25. T: Ginawa nyo ba naman ang inuutos ni Mrs. Oebanda?
"26. T: Alam mo ba na ito ay mali?
S: Alam kopo na ito ay mali."
"27. T: Bakit ginawa mo pa din?
S: Dahil sa takot ko na ako po ay mawalan ng trabaho kapag hindi ako sumunod."
where are those documents as stated in your Sinumpaang Salaysay which you accomplished or fabricated upon the orders of Mrs. Oebanda?
Ms. Villacorte: Those were the documents we presented to the auditors, Your Honor.15ChanRoblesVirtualawlibrary
x x x xClearly, the records show that Judge Cabochan personally examined NBI Agents Villasfer and Mercado, the applicants for the search warrant, as well as their witnesses, Villacorte and Aguilar. The interrogations conducted by the trial judge showed that the applicants and their witnesses had personal knowledge of the offense petitioners committed or were then committing. The judge properly asked how the applicants came to know of the falsification, where it was committed, what was involved, the extent of their participation, and what they have seen and observed inside Visayan Forum's premises. We believe that the questions propounded on them were searching and probing. The trial judge made an independent assessment of the evidence submitted and concluded that the evidence adduced and the testimonies of the witnesses support a finding of probable cause which warranted the issuance of a search warrant for violation of Article 172(2) of the Revised Penal Code.
Court: Earlier, the two applicants here for Search Warrant stated that when they entered the premises to be searched, they said that they posed as auditors of your company?
Ms. Aguilar: Yes, Your Honor.
Court: And according to them, you Mrs. Aguilar were with them when they entered the premises, will you confirm that?
Ms. Aguilar: Yes, Your Honor. I confirm that and also my father, the managing partner of our firm was with us, Mr. Benjamin F. Medina.
Court: And also everything they have stated about the sketch of the building and that you are also very much aware of the set-up of that building one and building two?
Ms. Aguilar: Yes, Your Honor, but on that day, Atty. Dennis came with me to inspect the various floors of the two buildings. I just made an alibi that it's part of our audit procedures.
Court: And you also confirm the fact that based on the sketches that are attached now to the application for Search Warrant, will you confirm that it is also of your own personal knowledge that those properties listed in their application for Search Warrant under paragraph 2 sub-paragraphs (a), (b), and (c) were really found within the subject premises as shown from the marked sketches?
Ms. Aguilar: Yes, Your Honor.
Court: The reason for this is because you were one of the companions of Atty. Villasfer when you went to the subject premises?
Ms. Aguilar: Yes, Your Honor. And I was also the one who showed to both of them the altered receipts and invoices and also the other documents relating to our audit findings.
x x x x
Court: Those things were not covered by your Affidavit, Mrs. Aguilar. Do you confirm now what Atty. Villasfer manifested a while ago?
Ms. Aguilar: Yes, Your Honor. Actually, it is included in my Affidavit as one of our audit findings because one of our audit findings [is] alterations of receipts and invoices. I think it is number ten (10) or eleven (11), Your Honor. And I showed to the applicants some of the photocopied vouchers that we notice[d) that were altered because, Your Honor, this organization, we had the entrance conference [i]n January of this year. Based on routine audits, they will be given two weeks to prepare for us, but they allow[ed] us to start the audit only in April. So there were delays in the audit, Your Honor.
Court: It was supposed to be [i]n January 2012 but you were allowed only when?
Ms. Aguilar: April 18, 2012, Your Honor, to be exact. On that date, on April 18, there were still some missing documents that we already requested [from] them during our entrance conference, Your Honor. And, we observed that while we were conducting our audit field work, they were also doing manufacturing of documents. We clearly observed many documents that were altered during our audit and I have some examples of photocopie[d] documents. x x x. Your Honor, this NGO, they received grants from USAID, not only from USAID, but from other donor agencies, twelve to be exact including the USAID. What they do is, they received grants and these grants are supposed to help traffic victims which they have in their different regional offices. However, we validated the authenticity of the number of the actual beneficiaries from third party confirmations. We need confirmation with DSWD and we noted that based on their record and their reports to the DSWD, there were various inconsistencies. Many, I just included maybe two (2) of the inconsistencies in the number. And also we validated with the USAID. The report that they submitted to the USAID, there were also inconsistencies. x x x. So, as auditors, these are indicators of fraud. x x x.
Court: What were these documents which you discovered: the books of Books of Accounts, Ledgers, etcetera, as listed in the application?
Ms. Aguilar: Yes, Your Honor. Court: Will you explain further?
Ms. Aguilar: The thirty-two boxes for the check vouchers and journal vouchers were there, Your Honor[.] [W]hen we went back on Wednesday, August 29, 2012, [h]owever, there [were] five (5) to six (6) boxes which [were] missing already.
Ms. Aguilar: Yes, Your Honor. And, these boxes we initially audited them during our first month of field work. So what we did, I am curious as an auditor where those documents are. x x x.
Court: Which are already missing?
Ms. Aguilar: Yes, Your Honor. And, I have also suspicions, Your Honor, of pre-printed booklets because there are various pre-printed booklets of original receipts which the company used, they are non-existing anymore. They just used the company name and the address and they had it printed by the printing press, their favored printing press and they used it as a sort of justification for their expenditures. But, as auditors, we are trying to se[e] whether they are valid or not. So, I am also suspecting that [they are] hiding these documents.
Court: Why did you have suspicions?
Ms. Aguilar: Because, of course, if they had it pre-printed, they wouldn't show it to us.
Court: What about those other documents, which you suspected were already missing at the time when you went back to make an audit of these accounts or the existing ledgers?
Ms. Aguilar: Because during our field work sometime in June, when we audit, there are schedules from 10:00 to 5:00. We come home then we go there the following day, we noticed that there were ballpens left on a table and when we check[ed] the vouchers, most of them they tampered [them] already or they removed something and they changed [them] to [other] document[s]. So what we did, we taped the boxes and I signed them to seal them. Those were audited already, that's what we did. Then I counted it and I knew that five to six boxes were missing because initially, [there were] thirty-eight (38) boxes. But, thirty-two (32) [were] only left when we came back that June.
x x x x
Court: Well, that was just your suspicion.
Ms. Aguilar: Yes, just like what I've said, Your Honor, these are indicators of fraud and indicators of their intentions to conceal or destroy all incriminating evidence.
x x x x
Ms. Aguilar: x x x. And also we want to secure the computers because the data that [were] presented to us, attached to [these] documents inside the boxes, they are computer printed.
Court: That's why you wanted also to get all those computers and the laptops.
Ms. Aguilar: Yes, Your Honor because during the course of our audit, they changed the figures and dates and sometimes the names of the employees if it is cash advance.16 (Emphasis Supplied)
Section 4. Requisites for issuing search warrant. - A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines.To paraphrase this rule, a search warrant may be issued only if there is probable cause in connection with a specific offense alleged in an application based on the personal knowledge of the applicant and his witnesses. This is the substantive requirement for the issuance of a search warrant. Procedurally, the determination of probable cause is a personal task of the judge before whom the application for search warrant is filed, as he has to examine the applicant and his or her witnesses in the form of "searching questions and answers" in writing and under oath. The warrant, if issued, must particularly describe the place to be searched and the things to be seized.19
Section 5. Examination of complainant; record. - The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted.
Section 6. Issuance and form of search warrant. - If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules.
1 Under Rule 45 of the Rules of Court.
2Rollo, pp. 47-50. Penned by Presiding Judge Ma. Lourdes A. Giron.
3 Id. at 51-54.
4 Id. at 55-56.
5 Art. 172. Falsification by private individual and use of falsified documents. — The penalty of prision correccional in its medium and maximum periods and a fine of not more than P5.000 shall be imposed upon:
1. Any private individual who shall commit any of the falsifications enumerated in the next preceding article in any public or official document or letter of exchange or any other kind of commercial document; and
2. Any person who, to the damage of a third party, or with the intent to cause such damage, shall in any private document commit any of the acts of falsification enumerated in the next preceding article.