SECOND DIVISION

[G.R. No. 112761-65. February 3, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PORFERIO M.

PEPITO, accused-appellant.

DECISION
PUNO, J.:

Accused-appellant PORFERIO PEPITO appeals from the Decision of the trial court
convicting him of Malversation of Public Funds through Falsification of Official
Documents on five (5) counts.
Appellant, as Acting Postmaster of Iligan City, was charged with misappropriating
government funds by manipulating his records and making it appear that he paid a
number of postal money orders although no such payments were made. Appellant was
found short in his cash accounts, as follows: (a) P23,643.73 for October
1975;[1] (b) P11.07 for December 1975;[2] (c)P7,283.59 for the month of January
1976;[3] (d) P30,052.25 for April 1976, and;[4] (e) P42,302.97 for May 1976.[5]
Except for the dates and amounts involved, appellant was similarly charged in five
(5) separate Informations[6] as follows:

That sometime during the month of ________________, in the City of Iligan,

Philippines, and within the jurisdiction of this Honorable Court, the said accused
Porferio Pepito, Acting Postmaster of Iligan City, with official station thereat, and as
such accountable officer, responsible for funds collected and received by him by
reason of his position, did then and there wilfully, unlawfully and fraudulently and
with grave abuse of confidence, misappropriate, embezzle and take away government
funds in his possession in the amount of ____________ accused employing deceit,
false manifestation and fraudulent misrepresentations, manipulated his records to
make it appear that on the month of ____________ , the Money Order Paid by him
was ___________ , although his payments amounted only to ____________, making
untruthful statements in a narration of facts and that by virtue of such falsification in
his record of payments, the said accused successfully appropriated and converted to
his own personal use and benefit the sum of ___________, to the damage and
prejudice of the Bureau of Post, Manila, Philippines, in the aforementioned amount of
___________.

Contrary to and in violation of Article 217 and Article 171 of the Revised Penal Code.
 First, the facts. In a letter,[7] dated August 5, 1976, CESAR L. JUAN, Regional
Director of the Bureau of Posts, Region X, Cagayan de Oro City, requested the Office of
the City Auditor, Iligan City, to audit the accounts of appellant PORFERIO
PEPITO, Acting Postmaster of Iligan City. Earlier, an audit team from the Office of
Regional Director Juan uncovered certain anomalies regarding appellants postal money
order transactions at the Iligan City Post Office. However, due to lack of time, the team
failed to determine the exact figure involved in the anomaly. Hence, their request for
assistance from the City Auditors Office.[8]
Iligan City Auditor FRANCISCO APARECE immediately formed an audit team
composed of Assistant City Auditor HONORIO N. PABLICO and Auditor ROMULO
ORBE.[9] They started their audit on August 19, 1976 and concentrated on the postal
money order transactions of appellant. They examined the cash in appellants
possession and verified the records of the postal money orders (PMOs), the payment of
these checks, and all depository funds of said post office in government banks and in
the Bureau of Posts, Manila, covering the period from July 1, 1975 to August 9, 1976.[10]
Asst. Auditor Pablico outlined the procedure for payment of postal money orders,
thus: The postmaster pays the postal money order (PMO) upon presentation to him.
The PMO paid cards, evidencing payment of the PMOs, are then kept by the
postmaster as custodian. The postmaster then prepares a list of the PMOs he paid for a
period of fifteen (15) days. Hence, in a month, the postmaster prepares two (2) lists or
records of payment: one for the first fifteen days of the month, and another list for the
next fifteen days. The PMO paid cards and the lists are then sent to the central office of
the Bureau of Posts in Manila for safekeeping. A copy of each list is sent to the
Regional Office of the Bureau of Posts, another copy is sent to the City Auditors Office
and the last copy is retained by the Postmaster himself.[11]
The audit team verified the total amount of PMO payments appearing on the lists or
records prepared by appellant. They totalled the daily PMO payments of appellant and
cross-checked them with appellants entry on the cash book. These reveal the total
money order payments of appellant for the month. After totalling the PMO payments of
the postmaster per month, the audit team requested the Central Office of the Bureau of
Posts in Manila, through its regional office, to furnish them the PMO paid cards,
evidencing payments of the PMOs during the period covered by their audit. [12]
Upon receipt of the PMO paid cards, the audit team cross-checked the paid cards
with the record of the PMOs allegedly paid by appellant. They discovered that some
PMOs were listed as paid but were not supported by paid cards. The audit team
uncovered these discrepancies for the months of October and December, 1975 and for
the months of January, April and May, all of 1976. Based on the records, the total PMOs
paid by appellant during the period covered by the audit was P494,720.85, but
only P250,090.60 was supported by PMO paid cards. The balance of two hundred forty-
four thousand six hundred thirty pesos and twenty-five centavos (P244,630.25) was
disallowed in audit for lack of supporting documents. Hence, the cash shortage in
appellants account.[13] Appellant asked the auditors to double-check their findings but the
audit team came out with the same result.
 In a letter[14] dated February 25, 1977, the audit team informed appellant of the
shortage in his cash accounts. They demanded from appellant the immediate restitution
of the missing funds and an explanation why no criminal and administrative sanctions
should be taken against him.[15] No action was taken by appellant to restore and explain
his shortage of funds. Hence, five (5) criminal Informations for malversation of public
funds through falsification of official documents were filed against him.
After the prosecution formally offered its evidence and rested its case on December
18, 1978, the continuation of the hearing for the presentation of the defense evidence
was suspended due to the transfer of then Presiding Judge Leonardo I. Cruz to Angeles
City.
It was only after two (2) years, or on August 13, 1982, that continuation of the trial
resumed for the presentation of the defense evidence.However, on the scheduled date
of hearing, appellant, through counsel, filed a motion to suspend the trial[16] on the
ground that he has applied for and was conditionally granted an amnesty under P.D.
1082 by the 11th Amnesty Commission of Marawi City, Lanao del Sur, for said
cases. Appellant prayed that pursuant to Section 6 of P.D. 1082, further proceedings in
his cases be held in abeyance pending final approval of his conditional amnesty by the
President of the Philippines.
The fiscal opposed[17] the motion on the ground that the conditional amnesty of
appellant was spurious for it was issued by a person not duly authorized for the
purpose.
Resolution of this motion was deferred for six (6) years with the subsequent
reorganization of the judiciary and the re-raffling of appellants cases. Finally, in an
Order,[18] dated September 9, 1988, appellants motion to suspend the trial of the cases
was set for hearing by the new presiding Judge Tago M. Bantuas. However, on the date
set, appellants counsel failed to appear. Judge Bantuas continued with the hearing of
appellants motion and denied appellants motion to suspend the trial. The continuation of
the hearing of the cases was set on January 10, 1989. Upon receipt of the Order and
Notice of Hearing, appellants counsel, Atty. Dimnatang T. Saro, filed a motion to
postpone the hearing due to conflict of schedule.[19] Hearing was thus reset to February
7, 1989.[20]
Again, a series of motions to defer the hearing was filed at appellants instance and
granted by the trial court. It was only on January 24, 1992 that the new presiding Judge
Maximino Magno-Libre issued an Order admitting the evidence offered by the
prosecution.[21] On July 14, 1992, the defense commenced to adduce its evidence and
presented appellant as its lone witness.
On the stand, appellant denied there was shortage in his cash accounts. After he
was informed of the missing funds, he asked the audit team to re-examine the records
for his cash on hand has always tallied with his cashbook. His office had been subjected
to various regular audit examinations by different offices, namely: the Bureau of
Treasury, the District Postal Inspector, the Postal Audit Examiners and the Iligan City
Auditors Office. None of these offices found any irregularity in his accountabilities. He
urged that there must have been some error or inaccuracy in the conduct of the
audit.He further charged that the malversation cases were filed against him for political
reasons for the late Governor Arsenio Quibranza had a grudge against his son-in-law.[22]
Appellant admitted that when he was found short in his cash accounts, he applied
for amnesty under P.D. 1082. When he was informed by then Presiding Judge Dalisay
and Prosecutor Lagcao that he would have to admit his guilt in his application for
amnesty since amnesty presupposes the commission of a crime, he still proceeded with
his application for his friends in Lanao del Sur assured him that his amnesty would be
immediately processed and approved. His conditional amnesty has been granted but it
is still pending final approval by the President for allegedly there is someone in Manila
who is blocking the grant of his amnesty.[23]
After trial, the court rendered judgment[24] on September 8, 1993 finding appellant
guilty of the crime charged. The dispositive portion reads:
WHEREFORE, in accordance with the provisions of Article(s) 217, 171, in relation
to Article 48 of the Revised Penal Code, the Court finds accused guilty on all the five (5)
counts he is charged (with) and is hereby sentenced, to wit:

1. As to Criminal Case No. 277, since the amount misappropriated is P23,643.73,

accused should be penalized according to the penalty provided in Paragraph No. 4 of
Article 217 of the Revised Penal Code which is reclusion temporal maximum
to reclusion perpetua. Since according to Article 48 of the Revised Penal Code, the
penalty for the most serious crime shall be applied in its maximum period, accused is
meted out a penalty of reclusion perpetua.

2. As to Criminal Case No. 278, considering that the amount misappropriated

was P11.07, according to Article 48 of the Revised Penal Code, the penalty for the
most serious crime shall be imposed in its maximum period, thus, accused should be
meted out the penalty prescribed in Article 171 and in applying the provisions of the
indeterminate sentence law, accused should be meted the indeterminate prison terms
of six (6) years prision correccional to twelve (12) years prision mayor.

3. As to Criminal Case No. 274, since the amount malversed was P7,283.79, accused
should be penalized according to Paragraph No. 3 of Article 217 of the Revised Penal
Code and should be meted out an indeterminate penalty of ten (10) years and one (1)
day of prision mayor to fourteen (14) years and eight (8) months of reclusion
temporal.

4. As to Criminal Case No. 275, considering that the amount misappropriated

is P30,052.20, the penalty imposed should be akin to the penalty prescribed in
Criminal Case No. 277 mentioned in Paragraph 1 hereof, which is reclusion
perpetua; and
5. As to Criminal Case No. 276, considering that the amount subject of malversation
is P37,558.30, then the necessary penalty of reclusion perpetua should also be meted
out against accused.

Finally, accused is also hereby ordered to pay the government the total sum
of P98,549.99, which is the aggregate government funds actually misappropriated, for
restitution in accordance with Article 104 of the Revised Penal Code.

SO ORDERED.

Hence this appeal where appellant contends that:

I. THE TRIAL COURT ERRED IN DENYING THE ACCUSED-APPELLANTS MOTION
TO SUSPEND THE PROCEEDINGS OF THE CASES PENDING FINAL ACTION
ON THE CONDITIONAL AMNESTY GRANTED TO THE APPELLANT;
II. THE COURT A QUO ERRED IN CONVICTING THE ACCUSED-APPELLANT OF
THE CRIMES OF MALVERSATION OF PUBLIC FUNDS THRU FALSIFICATION
OF OFFICIAL DOCUMENTS; AND
III. THE TRIAL COURT ERRED IN FAILING TO CONSIDER VOLUNTARY
SURRENDER IN FAVOR OF THE ACCUSED-APPELLANT.
First. Appellant charges that the trial court erred in denying his motion to suspend
the proceedings in these cases pursuant to Section 6 of P.D. 1082. [25] Hence, the
proceedings of the trial court are null and void and the judgment of conviction against
him should be vacated.
We do not subscribe to appellants contention. On the date scheduled for hearing of
his motion, appellants counsel failed to appear and substantiate the allegations in his
motion. The trial court proceeded with the hearing of the motion, found no merit thereto
and denied the same.Appellants counsel received a copy of the Order of denial and was
notified of the continuation of the hearing of said cases. Appellant did not challenge the
correctness of this ruling by way of a petition for certiorari and prohibition with the Court
of Appeals.[26] Instead, he proceeded to adduce evidence in his defense. After more than
fifteen (15) years of trial of his cases, appellant cannot now impugn the Order of the
court denying his motion to suspend his prosecution.[27]
Second. Appellant contends that there was no clear showing that he
misappropriated the missing funds. Allegedly, his office has been regularly audited by
different agencies and none has found him short in his accountabilities. He insists on
the inaccuracy of the audit report of the City Auditors Office which examined his cash
and accounts.
We find no merit in the contention. It is settled that in cases of malversation of public
funds, the mere failure of a public officer to have duly forthcoming any public funds or
property with which he is chargeable, upon demand by any duly authorized officer,
is prima facie evidence that he has put such funds or property to personal use. [28] An
accountable officer may be convicted of malversation even in the absence of direct
proof of misappropriation so long as there is evidence of shortage in his accounts which
he is unable to explain.[29] Indeed, to justify conviction for malversation of public funds,
the prosecution has only to prove that the accused received public funds or property
and that he could not account for them or did not have them in his possession and could
not give a reasonable excuse for the disappearance of the same.[30]
In the case at bar, all the elements of malversation of public funds are
present, viz: (a) the offender is a public officer, (b) he had custody or control of the
funds or property by reason of the duties of his office, (c) these funds or property were
public funds or property for which he was accountable, and (d) that he appropriated,
took, misappropriated or consented, or through abandonment or negligence permitted
another person to take them.[31]Appellant, as Acting Postmaster of Iligan City has
custody of the funds of his Office. A portion of these funds was used in the payment of
postal money orders (PMOs) presented to him. As evidence of these payments, the
Postmaster accomplishes the PMO paid cards and makes a list of the PMOs he paid for
a given period. These lists and paid cards are then sent to the Central Office of the
Bureau of Post for safekeeping. An audit of the PMO transactions of appellant,
however, disclosed that some of his PMO payments were not supported by PMO paid
cards.
Appellants assertion that the audit made by the Office of Iligan City Auditor was
inaccurate remains an unsubstantiated allegation. Although appellant insisted on this
alleged inaccuracy during the trial, he cannot point to the specific procedure where the
auditors erred in examining his accountabilities.[32] Noticeably, appellant did not present
any document to show that the audit of other government agencies covered also the
PMO transactions of the post office for the same period covered by the audit of the City
Auditor.
Appellant also faults the trial court for considering as an admission of guilt his
application for amnesty under P.D. 1082. Regardless of this consideration, however, the
totality of the prosecution evidence has proved the guilt of appellant beyond reasonable
doubt. The testimonies of the auditors and the documentary evidence adduced clearly
proved appellants shortage of funds and his corresponding liability therefor as an
accountable officer. The testimonial and documentary evidence of the prosecution were
not successfully rebutted by the defense.
Finally, appellant contends that the trial court failed to consider in his favor the
mitigating circumstance of voluntary surrender. Allegedly, he voluntarily surrendered to
the court of justice and posted bail for his provisional liberty before a warrant for his
arrest could be issued.
The rule is clear that for the mitigating circumstance of voluntary surrender to be
appreciated, it must be proven that the accused freely placed himself at the disposal of
law enforcing authorities. The records confirm that appellant was arrested and detained
by the INP Station of Marawi City for the crimes charged upon the issuance of the
Order[33] for his arrest on February 9, 1978. Appellant was only released from
custody[34] upon the approval of his bailbond on March 27, 1978. Under the
circumstances, appellant cannot be credited with the mitigating circumstance of
voluntary surrender.
 IN VIEW WHEREOF, the Decision of the trial court convicting appellant PORFERIO
M. PEPITO for five (5) counts of Malversation of Public Funds Through Falsification of
Official Documents is AFFIRMED. Costs against appellant.
SO ORDERED.
Regalado, (Chairman), Romero, Mendoza and Torres, Jr., JJ., concur.

[1]
Information, Crim. Case No. 277; Original Records, p. 434.
[2]
Information, Crim. Case No. 278; Original Records, p. 454.
[3]
Information, Crim. Case No. 274; Original Records, p. 1.
[4]
Information, Crim. Case No. 275; Original Records, p. 394.
[5]
Information, Crim. Case No. 276; Original Records, p. 414.
[6]
Original Records, p.1.
[7]
Original Records, p.147.
[8]
TSN, July 28, 1978, pp.179-180.
[9]
Original Records, p.109; TSN, July 28, 1978, pp.6-8, 171-172.
[10]
TSN, July 28, 1978, pp.9-11.
[11]
Id., pp. 21-25.
[12]
Id., pp. 28-33.
[13]
Id., pp. 35-70.
[14]
Exhibit L, Original Records, p.146.
[15]
Id., pp. 71-74.
[16]
Original Records, pp.194-196.
[17]
Opposition, dated November 2, 1982; Original Records, p. 207.
[18]
Original Records, p.223.
[19]
Id., p. 247.
[20]
See Order, dated January 10, 1989; Original Records, p.254.
[21]
Original Records, p.284.
[22]
TSN, June 14, 1992, pp.6-36, 39-41.
[23]
Id., pp. 37-41.
[24]
Penned by Judge Maximino Magno-Libre, Regional Trial Court, Lanao del Norte, 12th Judicial Region,
Branch V, Iligan City; Rollo, pp.90-100.
[25]
SEC. 6. Pending Cases. - The investigation and trial of criminal cases against persons who apply for
amnesty pursuant to this Decree shall be held in abeyance until their applications for amnesty
shall have been finally acted upon in accordance hereof.
[26]
Fortich-Celdran, et al. v. Celdran, et al., 19 SCRA 502.
[27]
It is also well to note that as per the testimony of appellant himself, the conditional amnesty granted to
him by the Amnesty Commission way back June 5, 1977 is still pending final approval by the
President of the Philippines; TSN, June 14, 1992, p. 39.
[28]
Article 217, last paragraph, Revised Penal Code; Agbanlog v. People, G.R. No. 105907, May 24, 1993,
222 SCRA 530.
[29]
Navallo v. Sandiganbayan, G.R. No. 97214, July 18, 1994, 234 SCRA 175; Cabello v. Sandiganbayan,
G.R. No. 93885, May 14, 1991, 197 SCRA 94.
[30]
Felicilda v. Grospe, G.R. No. 102494, July 3, 1992, 211 SCRA 285.
[31]
Agbanlog v. People, 222 SCRA 530.
[32]
TSN, June 14, 1992, pp. 26 & 34.
[33]
Original Records, p.55.
[34]
Order of Release, dated March 27, 1978, Original Records, p.56.