ZENON R. PEREZ VS. PEOPLE OF THE PHILIPPINES G.R. No. 164763, February 12, 200 !

a"#er$a%&o' o( Pub"&) Fu'*$

FACTS An audit team conducted a cash examination on the account of petitioner, who was then the acting municipal treasurer of Tubigon, Bohol. In the course of the audit, the amount of P !,""!.#$ was found in the safe of petitioner. The audit team embodied their findings in the %eport of Cash &xamination, which also contained an in'entor( of cash items. Based on the said audit, petitioner was supposed to ha'e on hand the total amount of P$),!!*."*, instead of the P !,""!.#$, incurring a shortage of P# ,#+).,#. -hen as.ed b( the auditing team as to the location of the missing funds, petitioner 'erball( explained that part of the mone( was used to pa( for the loan of his late brother, another portion was spent for the food of his famil(, and the rest for his medicine. As a result of the audit, Arlene %. /andin prepared a memorandum dated 0anuar( !", !$+$ addressed to the Pro'incial Auditor of Bohol recommending the filing of the appropriate criminal case against petitioner. Petitioner was charged before the Sandiganba(an with mal'ersation of public funds, defined and penali1ed b( Article !# of the %e'ised Penal Code ISS2& Is petitioner guilt( of mal'ersation3 %24I56 7&S. /al'ersation is defined and penali1ed under Article !# of the %e'ised Penal Code. The acts punished as mal'ersation are8 9!: appropriating public funds or propert(, 9 : taking or misappropriating the same, 9": consenting, or through abandonment or negligence, permitting an( other person to ta.e such public funds or propert(, and 9): being otherwise guilt( of the misappropriation or mal'ersation of such funds or propert(. There are four elements that must concur in order that one ma( be found guilt( of the crime. The( are8 9a: That the offender be a public officer; 9b: That he had the custody or control of funds or propert( by reason of the duties of his office;9c: That those funds or propert( in'ol'ed were public funds or propert( for which he is accountable; and 9d: That he has appropriated, too. or misappropriated or consented or, through abandonment or negligence, permitted another person to ta.e them. &'identl(, the first three elements are present in the case at bar. At the time of the commission of the crime charged, petitioner was a public officer, being then the acting municipal treasurer of Tubigon, Bohol. B( reason of his public office, he was accountable for the public funds under his custod( or control. In mal'ersation, all that is necessar( to pro'e is that the defendant recei'ed in his possession public funds; that he could not account for them and did not ha'e them in his possession; and that he could not gi'e a reasonable excuse for its disappearance. An accountable public officer ma( be con'icted of mal'ersation e'en if there is no direct e'idence of misappropriation and the onl( e'idence is shortage in his accounts which he has not been able to explain satisfactoril(. <eril(, an accountable public officer ma( be found guilt( of mal'ersation e'en if there is no direct e'idence of mal'ersation because the law establishes a presumption that mere failure of an accountable officer to produce public funds which ha'e come into his hands on demand b( an officer dul( authori1ed to examine his accounts is prima facie case of con'ersion. Because of the prima facie presumption in Article !#, the burden of e'idence is shifted to the accused to ade=uatel( explain the location of the funds or propert( under his custod( or control in order to rebut the presumption that he has appropriated or misappropriated for himself the missing funds. Failing to do so, the accused ma( be con'icted under the said pro'ision. >owe'er, the presumption is merel( prima facie and a rebuttable one. The accountable officer ma( o'ercome the presumption b( proof to the contrar(. If he adduces e'idence showing that, in fact, he has not put said funds or propert( to personal use, then that presumption is at end and the prima facie case is destro(ed. In the case at bar, petitioner was not able to present an( credible e'idence to rebut the presumption that he mal'ersed the missing funds in his custod( or control.