[G.R. NO. 156652 October 13, 2005]
DR. BENITA F. OSORIO, Petitioner, v. HON. ANIANO A. DESIERTO, as Ombudsman, HON. PRIMO C. MIRO, as Deputy Ombudsman for the Visayas, HON. VIRGINIA PALANCA-SANTIAGO, Ombudsman Director for the Visayas, and HON. SAMUEL MALAZARTE, Ombudsman Investigating Prosecutor for the Visayas, Respondents.
D E C I S I O N
This is a Petition for Review on Certiorariunder Rule 45 of the Rules of Court assailing the 13 December 2002 Decision1 of the Court of Appeals in CA-G.R. SP No. 67511 which affirmed in toto the 12 January 2001 Resolution of the Office of the Ombudsman-Visayas in OMB-VIS-Crim-98-0811, as well as the order dated 17 July 2001 denying petitioner's motion for reconsideration.
This instant petition originated from a letter-complaint dated 27 January 1998 by Beatriz L. Tenorio, addressed to the Ombudsman Aniano A. Desierto, accusing petitioner Dr. Benita Osorio, principal of Dr. Cecilio Putong National High School (formerly Bohol National High School) of committing the following acts2 :
1. Failure to account for the rentals of the school facilities;
2. Non-remittance to the school trust funds of money from the sale of old newspapers to the school and appropriation of the said amount to herself;
3. Ready-made bidding with supplier of school-needed materials;
4. Double mandatory collection supposedly for the Boy and Girl Scouts of the Philippines, from all students of Bohol National High School and non-remittance of all the contributions to BSP and GSP;
5. Treatment of money from the school canteen as her personal money;
6. Conspiracy with treasure hunters in digging under the main ground of the school building for Yamashita treasures;
7. Falsification of travel document to claim bigger representation allowances; andcralawlibrary
8. Other improper acts.
Acting on the complaint, the Office of the Ombudsman-Manila, on 29 January 1998, requested the National Bureau of Investigation (NBI) to conduct an investigation to verify the alleged anomalies at the Dr. Cecilio Putong National High School.
Without delay, the NBI conducted an investigation. On 11 February 1998, the NBI submitted the results of the investigation which yielded the following findings: a) that petitioner Osorio authorized the sale of newspapers, but did not remit the proceeds thereof to the school; and b) that she issued a memorandum through which students were charged more than the allowable fees for their membership with Boy and Girl Scouts of the Philippines. The NBI suggested to the Office of the Ombudsman-Visayas that it ask the assistance of the Commission on Audit (COA) since the reported irregularities necessitated the conduct of proper auditing.
On 17 February 1998, the Office of the Ombudsman-Manila requested audit specialists from the COA to conduct a thorough investigation on the alleged anomalies at the Dr. Cecilio Putong National High School.
Meanwhile on 06 March 1998, the NBI submitted a follow-up report reiterating the findings stated in its previous report.
On 05 June 1998, COA auditors Anita G. Quitara, Ma. Violeta Luala Luta and Diana G. Tabinas submitted the report of their findings.
The NBI and COA findings were forwarded by the Office of the Ombudsman-Manila to the Office of the Ombudsman-Visayas for appropriate action.
The adverse findings made by the COA were summarized by the Office of the Ombudsman-Visayas as follows3 :
Allegation no. 1: "No accounting of rentals of the school facilities."
COA findings disclosed that no official receipt (OR) was issued by the school from the rentals of its facilities and as such no recording were reflected in the books.
Allegation no. 2: "Money from the sale of old newspapers was not remitted to the school trust funds but pocketed by Dr. Benita Osorio" - Proceeds from the sale of old newspapers totaling
P2,621.75 were not receipted, recorded and accounted for in the books of the agency, instead these were allegedly turned over to the school principal.
Allegation no. 3: "Practice ready-made bidding with supplier of school-needed materials" - Supplies and materials were purchased from the same supplier and were delivered before the canvass papers were prepared, thereby casting doubts as to the regularity of the procurement.
Allegation no. 4: "Double mandatory collection of BSP and GSP membership of all students of BNHS, and not all contribution were remitted to BSP and GSP but pocketed by Dr. Benita Osorio"'
(i) students were assessed for membership fees of Girl and Boy Scouts of the Philippines in excess of the rates authorized by DECS Order No. 27 and regardless of gender. The total amount irregularly collected was
(ii) An additional fee of
P1.00, or a total of P698 was collected from the fourth year students in the school year 1997-1998 without a stated purpose and authority from the DECS. Further, the donation paid by all students for the PNRC was in excess of the rate authorized by the DECS and actually remitted to the PNRC, resulting in excessive collection of P15,810.00.
Allegation no. 5: "Money of the school canteen was treated as her personal money" - Although recorded in the books as Trust Liability, collections from the canteen operations were not remitted intact, instead, daily expenses/purchases were deducted therefrom. Likewise, expenses incurred for the canteen operations totaling
P269,890.92 were not recorded in the books. Further, a cash book was not maintained to record the total sales and expenses incurred during the day, hence, the actual sales for the day could not be ascertained.
Allegation no. 6: "Conspiring with treasure hunters in digging under main school building for Yamashita treasures" - No adverse findings.
Allegation no. 7: "Falsification of travel document to claim representation allowance" - This allegation could not be confirmed because the amount of daily per diem claimed was in accordance with existing regulations.
Allegation no. 8: "Other improper acts" - MOOE (Maintenance and Other Operating Expenses) funds were utilized in the purchase of construction materials totaling
P82,717.75 for the construction of a modern guardhouse, in violation of Section 145 of GAAM, Vol. I, while the beautification projects costing P43,349.50 were given priority instead of the repair of the dilapidated windows and classrooms, resulting in the wasteful utilization of government funds.
After evaluating the report of the COA auditors, the Office of the Ombudsman-Visayas was convinced that allegations no. 1 to no. 4 were duly substantiated while the rest of the allegations were not. It found prima facie case of five (5) counts of Malversation of Public Funds against petitioner on the proceeds of the sale of the school's old newspapers on five occasions, i.e., on 15 March 1993, 01 September 1997, 02 December 1997, 11 December 1997 and 07 January 1998. It also found prima facie evidence for violations of Section 3(e) of Republic Act No. 3019, two (2) counts for the alleged irregularity in the purchase of school supplies, as evidenced by the purchase orders issued by petitioner dated 09 July 1997 and 16 July 1997, and another three (3) counts in relation to the assessment for membership fees of the Girl and Boy Scouts of the Philippines, which was in excess of the rates authorized under the Department of Education Culture and Sports Order No. 27. Petitioner's co-respondent, Mr. Nestor Robles, Supply Officer of the said school, was also found to have committed four (4) counts of Malversation of Public Funds in relation to his failure to account for the proceeds of the rentals of the school facilities. It docketed the criminal case as OMB-VIS-CRIM-98-0811. Based on the same findings the Office of the Ombudsman also filed an administrative case against petitioner which was docketed as OMB-VIS-ADM-98-0617.
Thereafter, the Office of the Ombudsman-Visayas directed the COA investigating auditors to submit a sworn affidavit of their report and additional evidence necessary for the preliminary investigation of the cases.4
On 17 December 1998, the investigating auditors submitted a sworn affidavit.
In an order dated 27 January 1999, the Office of the Ombudsman-Visayas issued an order placing petitioner and Mr. Nestor Robles under preventive suspension.
On 05 February 1999, the Office of the Ombudsman-Visayas ordered petitioner and Mr. Nestor Robles to file their respective counter-affidavits to the complaint.
On 01 March 1999, upon receipt of the order to file counter-affidavit and the order of preventive suspension, petitioner filed with the Office of the Ombudsman-Visayas a Joint Motion for Reconsideration and Recall of the Order of Preventive Suspension.
Later, on 15 March 1999, petitioner and co-respondent Robles submitted their respective counter-affidavits, denying participation in the alleged irregularities.
In a resolution dated 12 January 2001, the Office of the Ombudsman-Visayas found probable cause against petitioner for five (5) counts of Malversation of Public Funds and five (5) counts of violations of Section 3(e) of Rep. Act No. 3019, as amended. Prima facie evidence was also found against Mr. Nestor Robles for four (4) counts of malversation of public funds.
On 07 March 2001, petitioner filed with the Office of the Ombudsman-Visayas a motion for reconsideration and the Deferral of the Filing or Recall of the Filed Information.
Meanwhile, the necessary Informations were filed against the petitioner and Robles before the Regional Trial Courts of Tagbilaran City, Branches 4 and 47, respectively. Their respective arraignments were both deferred on the basis of pending Motions for Reconsideration before the Office of the Ombudsman-Visayas.
The Office of the Ombudsman-Visayas denied petitioner's motion for reconsideration in its order dated 17 July 2001.
This denial prompted petitioner to file before the Court of Appeals a Petition for Certiorari under Rule 65 of the Rules of Court interposing the following grounds:
1. Respondents committed abuse of discretion when it ruled that they no longer needed to conduct clarificatory hearing considering that the conduct of the same is discretionary on their part.
2. Respondent committed abuse of discretion in filing the questioned information considering that there is want of evidence establishing probable cause against herein petitioner.
In a decision dated 13 December 2002, the Court of Appeals dismissed the petition and affirmed in toto the Resolution dated 12 January 2001, as well as the order dated 17 July 2001 of the Ombudsman.
Hence, the instant appeal by certiorari.
Petitioner raises the following issues:
1. Whether the Court of Appeals is correct in ruling that the Honorable Office of the Ombudsman did not commit any grave abuse of discretion when it opted not to conduct a clarificatory hearing in the case of herein petitioner.
2. Whether the Court of Appeals erred in ruling that the other issues raised by herein petitioner on certiorari are purely questions of evidence and not of law.
At the outset, it must be pointed out that the remedy availed by petitioner is flawed. The title of this petition shows that petitioner filed the petition under Rule 45 of the Rules of Court. The remedy from resolutions of the Ombudsman in preliminary investigations of criminal cases is a Petition for Certiorari under Rule 65.
In Estrada v. Desierto,5 we held that the remedy of aggrieved parties from resolutions of the Office of the Ombudsman finding probable cause in criminal cases or non-administrative cases, when tainted with grave abuse of discretion, is to file an original action for certiorari with this Court and not with the Court of Appeals. By availing of the wrong remedy, the petition should be dismissed outright. Nevertheless, we will consider the present petition as one filed under Rule 65 of the Rules of Court since a perusal of the contents reveals that petitioner is imputing grave abuse of discretion on the part of the Office of the Ombudsman when it issued the Resolution dated 12 January 2001 and the Order dated 17 July 2001, finding probable cause for the filing of Informations against petitioner and co-accused Robles.
On the first issue raised by petitioner, she bewails respondent court's ruling decreeing that a clarificatory hearing in the instant criminal case is optional on the part of the investigating prosecutor. Petitioner believes that without a clarificatory hearing, it is impossible for the investigating prosecutor to resolve numerous irreconcilable issues and arrive at a lawful indictment. In particular, petitioner faults the Office of the Ombudsman's finding of probable cause to charge her for five (5) counts of Malversation relative to the sale of old newspapers. She insists that the two (2) gate passes issued by her, allowing utility worker Pergentina Baay to leave the school premises in order to sell the old newspapers of the school, do not support the fact that would lead to the conclusion that she received and misappropriated the proceeds of the sale, thus making her answerable for malversation. She said that the two gate passes merely prove that she approved the departure of the utility worker from the school campus in order to sell the old newspapers. She added that since the pieces of evidence submitted to the investigating prosecutor are susceptible to equivocal interpretation, he should have conducted a clarificatory hearing.
In finding probable cause for the indictment of petitioner for malversation, the Office of the Ombudsman-Visayas ratiocinated:
On allegation no. 2 above, the evidence on record tends to support a well-founded belief that the crime of Malversation of Public Funds, on five (5) counts, was committed and that herein respondent Dr. Benita F. Osorio is guilty thereof.
In spite of the strong protestation by respondent Osorio against accusation that she received the proceeds from the sale of the school's old newspapers, existing documentary evidence loudly tells however that she must have actually received such proceeds. She had allowed one Pergentina Baay to go out (of school premises) and to sell old newspapers as shown by her written request for the purpose and an approved gate pass (Annexes I-1 & I-2, COA Report, pp. 153-154, records). This in fact she has admitted though allegedly on only two occasions. Her denials that she never received from Mrs. Baay the newspaper proceeds and that she never bothered to ask about the same allegedly because she was made to understand it would be used to purchase floor wax, library ID cards and others, are simply unbelievable under the normal course of events given the circumstances of this case. The said Mrs. Baay is just a mere school utility worker. The respondent, on the other hand, is the school principal who is naturally expected to have asked about the proceeds from the newspapers the sale of which she had authorized. Mrs. Baay could not have kept for herself such proceeds knowing that her selling the newspapers was with the knowledge and authority of the respondent principal. Logic, therefore, tells us that subject proceeds were turned over to and received by the respondent contrary to her disclaimer.
. . .
There were several occasions (i.e., on March 15, 1993, September 01, 1997, December 02, 1997, December 11, 1997 and January 07, 1998) that said Mrs. Baay had sold newspapers of the school as disclosed in the above-mentioned COA Report. Since the audit examination found no record of receipt of such proceeds in the books of accounts of the school, it is only logical to presume that on every such occasion the respondent had put to her personal use the said proceeds.6
On the indictment for violations of Section 3(e) of Rep. Act No. 3019, it ruled:
On allegation no. 3, probable cause exists to warrant an indictment for Violation of Sec. 3(e) of R.A. No. 3019, as amended, on two (2) counts, against respondent Dr. Benita F. Osorio.
Both respondents Dr. Benita F. Osorio and Nestor Robles in effect contended that their school has a PBAC (Pre-qualification, Bids and Awards Committee) which conducts the bidding through which system the school's procurements are made, hence, not being members of said committee, they should not be held liable for whatever irregularity in the purchases of the school. This argument holds no water, especially for respondent Osorio, under the present case. The irregularity alleged to have marked the school's purchase transactions is the manner by which such transactions, were made to appear to have been legally undertaken through personal canvass in order to favor a particular supplier. It is therefore irrelevant whether or not the herein respondents are members of the PBAC, because there was no bidding to talk about in the questioned transactions. Further, the transactions referred to are those made under the incumbency of the present Supply Officer Hilaria E. Hora, not those during the time of respondent Robles as then Supply Officer. Hence, the respondents' emphasis on transactions purportedly regularly entered into during respondent Robles's time as Supply Officer has no bearing on the allegation against them.
There is enough evidence to sustain the foregoing allegation as against respondent Osorio. It adequately appears from the evidence on record that purchases for school supplies/materials were made directly from certain favored supplier/s without the benefit of bidding. There is no other manner of concluding it but this way when herein respondent Dr. Benita F. Osorio issued Purchase Order No. 29 dated July 09, 1997, when in fact the items (construction materials) with a total price of P3,755.00 subject thereof were already earlier delivered to the school as per unnumbered Delivery Receipt of Butalid Traders dated June 17, 1997 and inspected on the same date the said PO (purchase order) was issued as per Inspection Report dated July 09, 1997, duly noted by the same respondent. Additional documentary evidence consisting of Purchase Order No. 030 dated July 16, 1997, for certain items with a total price of P3,575.00 and three (3) Delivery Receipts of Tantrade Corporation dated June 3, 5 & 18, 1997, which similarly indicate an apparent irregularity as those first mentioned, would show another instance of anomalous transaction.
On allegation no. 4, there is prima facie evidence against respondent Dr. Benita F. Osorio for Violation of Sec. 3(e) of R.A. No. 3019, as amended (otherwise known as The Anti-Graft and Corrupt Practices Act), on three (3) counts.
(i) DECS Order No. 27, s. 1995, dated May 24, 1995 (Annex M. COA Report, supra), very clearly specifies the amounts of contributions for the Boy Scouts and Girl Scouts of the Philippines at P20.00 and P25.00, respectively, among others, allowed to be collected during enrollment period. Notwithstanding this definite directive, the herein respondent Principal issued two (2) Memoranda dated March 14, 1996 and March 10, 1997 re: Enrollment Guidelines for SY 1996-1997 & SY 1997-1998, respectively, instructing the collection of fees of, among others,
P26.00 (BSP) and P31.00 (GSP) for SY 1996-1997 and P30.00 (BSP) and P31.00 (GSP) for SY 1997-1998 (Annexes O-1 to 3 & P-1 to 3, respectively, COA Report, pp. 168-173, records). The foregoing issuance of the respondent in absolute defiance of the specific directive of the DECS Order mentioned, demonstrates evident bad faith or gross inexcusable negligence causing undue injury to the students of Dr. Cecilio Putong National High School arising from the collection of contributions from them in excess of the amounts legally allowed.7
With these opposing pieces of evidence adduced by the Office of the Ombudsman-Visayas and the petitioner, we believe that the former did not gravely abuse its discretion when it found probable cause against petitioner.
Section 1 of Rule 112 of the Rules of Criminal Procedure provides:
Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial.
The foregoing provision sets forth the purpose of preliminary investigation which is to determine whether there is a sufficient ground to engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof. Subsection (e) of Section 3 and of the same rule provides:
(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a witness. The parties can be present at the hearing but without the right to examine or cross-examine. They may, however, submit to the investigating officer questions which may be asked to the party or witness concerned.
In accordance with Section 4 of Rule 112 of the Rules of Court, the investigating prosecutor shall prepare the resolution and information if he finds cause to hold the respondent for trial. He shall certify under oath that he, or as shown by the record, an authorized officer, has personally examined the complaint and his witnesses, that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof. It is the call of the investigating prosecutor, in the exercise of his sound discretion, whether to conduct a clarificatory hearing or not. As correctly pointed out by the Court of Appeals, the term "may" under Subsection (e) of Section 3 of Rule 112 is merely permissive and operates to confer discretion upon the investigating prosecutor to conduct a clarificatory hearing or not.8 If he believes that the evidence before him is sufficient to support a finding of probable cause, he may not hold a clarificatory hearing. As held in Webb v. De Leon:9
. . . The decision to call witnesses for clarificatory questions is addressed to the sound discretion of the investigator and the investigator alone. If the evidence on hand already yields a probable cause, the investigator need not hold a clarificatory hearing.
Probable cause, for the purpose of filing a criminal information, has been defined as such facts as are sufficient to engender a well-founded belief that a crime has been committed and that respondent is probably guilty thereof.10 It is a reasonable ground of presumption that a matter is, or may be, well founded, such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so.11 The term does not mean "actual and positive cause" nor does it import absolute certainty.
Bearing in mind the inferior quantum of evidence needed to support a finding of probable cause, we find that the Office of the Ombudsman was well within its discretion in refusing to conduct clarificatory hearing. It has found enough evidence to establish probable cause, a fortiori rendering the conduct of a clarificatory hearing unnecessary.
The consistent and general policy of the Court is not to interfere with the Office of the Ombudsman's exercise of its investigatory and prosecutory powers.12 The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well.13 Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely swamped if they would be compelled to review the exercise of discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an Information in court or dismiss a complaint by a private complainant.14 The Court cannot interfere with the Office of the Ombudsman's discretion in determining the adequacy or inadequacy of the evidence before it. The investigation is advisedly called preliminary, as it is yet to be followed by the trial proper. The occasion is not for the full and exhaustive display of the parties' evidence but for the presentation of such evidence only as may engender a well-founded belief that an offense has been committed and that the accused is probably guilty of the offense.15 Hence, in the absence of a clear case of abuse of discretion, this Court will not interfere with the Office of the Ombudsman's discretion in the conduct of preliminary investigation.
Anent the second issue, petitioner protests the ruling of the Court of Appeals holding that the other issues raised by her are purely questions of evidence and not of law. She maintains that she properly raised issues which were purely questions of law in as much as she is inquiring into the propriety of the filing of the criminal complaint of Malversation and violation of Section 3(e) of Rep. Act No. 3019, premised on the proper interpretation of the elements of the laws she is being charged with. On the charges of malversation, petitioner opines that she cannot be indicted thereof considering that it is not the function of her office, as principal of the school, to receive and account for the funds of the school. One essential element of the crime of malversation is that the accused is "having custody or control of funds or property by reason of the duties of her office." Since she does not have direct responsibility for the keeping and accounting of the school funds, in this case the proceeds of the sale of the old newspapers, then she could not be charged with the said crime absent of such element.
The Court of Appeals, on the other hand, opines that petitioner's argument that there is no probable cause to indict her of malversation and violation of Section 3(e) of Rep. Act No. 3019 are matters of evidence which could not be legally inquired into at the preliminary stage of the case.
We agree with the Court of Appeals. The claims of petitioner that she did not receive and have control of the subject funds, as well as the absence of the elements of the crime of Section 3(e) of Rep. Act No. 3019, are undoubtedly evidentiary matters that are to be ventilated in a full-blown trial and not during the preliminary investigation. The presence and absence of the elements of the crime, which are by their nature evidentiary and defense matters, can be best passed upon after a trial on the merits.16 As earlier pointed out, the established rule is that a preliminary investigation is not the occasion for the full and exhaustive display of the parties' evidence.17 It is for the presentation of such evidence only as may engender a well-founded belief that an offense has been committed and that the accused is probably guilty thereof.
WHEREFORE, premises considered, the instant petition is hereby DISMISSED for lack of merit. The decision of the Court of Appeals in CA-G.R. SP No. 67511 dated 13 December 2002 affirming in toto the resolution dated 12 January 2001 and the order dated 17 July 2001 issued by the Office of the Ombudsman-Visayas is hereby AFFIRMED.
1 Rollo, pp. 34-46. Penned by Associate Justice Bienvenido L. Reyes with Associate Justices Romeo A. Brawner and Danilo Pine, concurring.
2 Rollo, pp. 34-35.
3 CA Rollo, pp. 30-35.
4 CA Rollo, p. 184.
5 G.R. No. 156160, 09 December 2004, 445 SCRA 655.
6 CA Rollo, p. 58.
7 CA Rollo, pp. 30-40.
8 Social Security Commission v. Court of Appeals, G.R. No. 152058, 27 September 2004, 439 SCRA 239; Capati v. Ocampo, G.R. No. L-28742, 30 April 1982, 113 SCRA 794.
9 G.R. No. 121234, 23 August 1995, 247 SCRA 652, 676.
10 Sarigumba v. Sandiganbayan, G.R. NOS. 154239-41, 16 February 2005, 451 SCRA 533.
11 Pilapil v. Sandiganbayan, G.R. No. 101978, 07 April 1993, 221 SCRA 349.
12 Estrada v. Desierto, G.R. No. 156160, 09 December 2004, 445 SCRA 655; Kara-an v. Office of the Ombudsman, G.R. No. 119990, 21 June 2004, 432 SCRA 457.
13 Alba v. Nitorreda, 325 Phil. 229 (1996); Knecht v. Desierto, G.R. No. 121916, 26 June 1998, 291 SCRA 292.
14 Ocampo, IV v. Ombudsman, G.R. NOS. 103446-47, 30 August 1993, 225 SCRA 725.
15 Kara-an v. Office of the Ombudsman, G.R. No. 119990, 21 June 2004, 432 SCRA 457.
16 Presidential Commission on Good Government v. Desierto, G.R. No. 132120, 10 February 2003, 397 SCRA 171.
17 Baytan v. Commission on Elections, G.R. No. 153945, 04 February 2003, 396 SCRA 703; People v. Court of Appeals, G.R. No. 126005, 21 January 1999, 301 SCRA 475.