SECOND DIVISION

[G.R. No. 166680. July 7, 2014.]

ALOYSIUS DAIT LUMAUIG, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
DECISION
DEL CASTILLO, J :
p

A prior notice or demand for liquidation of cash advances is not a condition sine qua
non before an accountable public officer may be held liable under Article 218 1 of
the Revised Penal Code.
Before us is a Petition for Review on Certiorari filed under Rule 45 of the Rules of
Court of the September 10, 2004 Decision 2 of the Sandiganbayan in Criminal Case
No. 26528 and its January 11, 2005 Resolution 3 denying reconsideration thereof.
The Information 4 dated January 25, 2001 under which petitioner Aloysius Dait
Lumauig (petitioner) was tried and convicted has this accusatory portion:
That in or about August 1994 or immediately prior or subsequent thereto, in
Alfonso Lista, Ifugao and within the jurisdiction of this Honorable Court, the
above-named accused then Municipal Mayor of Alfonso Lista, Ifugao, and as
such accountable public officer, and responsible for the amount of
P101,736.00 which the accused received by way of cash advance for
payment of the insurance coverage of the twelve (12) motorcycle[s]
purchased by the Municipality, and, hence with the corresponding duty
under the law to account for the same, did then and there, willfully and
feloniously fail to liquidate and account for the same to the damage and
prejudice of the Government. 5

The facts are matters of record or otherwise undisputed.

Sometime in January 1998, Commission on Audit (COA) Auditor Florence L.
Paguirigan examined the year-end reports involving the municipal officials of
Alfonso Lista, Ifugao. During the course of her examination of the records and
related documents of the municipality, she came across a disbursement voucher 6
for P101,736.00 prepared for petitioner, a former mayor of the municipality, as cash
advance for the payment of freight and other cargo charges for 12 units of
motorcycles supposed to be donated to the municipality. The amount was covered
by Land Bank Check No. 11894200 7 dated August 29, 1994 wherein the payee is
petitioner. Her further investigation of the accounting records revealed that no
payment intended for the charge was made to Royal Cargo Agencies for the month
of August 1994. Thus, she issued a certification 8 to this effect on November 29,

2001. She likewise claimed that she prepared two letters to inform the petitioner of
his unliquidated cash advance but the same were not sent to him because she could
not get his exact address despite efforts exerted. She averred that on June 4, 2001,
petitioner paid the subject cash advance before the treasurer of the municipality, for
which reason, incumbent Mayor Glenn D. Prudenciano executed an Affidavit of
Desistance. 9
EaIcAS

Petitioner admitted having obtained the cash advance of P101,736.00 during his
incumbency as municipal mayor of Alfonso Lista, Ifugao. 10 This amount was
intended for the payment of freight and insurance coverage of 12 units of
motorcycles to be donated to the municipality by the City of Manila. However,
instead of motorcycles, he was able to secure two buses and five patrol cars. He
claimed that it never came to his mind to settle or liquidate the amount advanced
since the vehicles were already turned over to the municipality. He alleged that he
was neither informed nor did he receive any demand from COA to liquidate his cash
advances. It was only in 2001 while he was claiming for separation pay when he
came to know that he still has an unliquidated cash advance. And so as not to
prolong the issue, he paid the amount of P101,736.00 to the municipal treasurer on
June 4, 2001.
From the same facts stemmed an Information for violation of Section 3 of Republic
Act (RA) No. 3019 11 docketed as Criminal Case No. 26527 against petitioner for
having allegedly utilized the cash advance for a purpose other than for which it was
obtained.
On September 10, 2004, after a joint trial, the Sandiganbayan rendered a
consolidated Decision 12 disposing thusly:
WHEREFORE, premises considered the Court rules as follows:
1.
In Criminal Case No. 26527, accused ALOYSIUS DAIT LUMAUIG is
hereby ACQUITTED. No civil liability shall be imposed there being no basis for
its award. The cash bond posted for his provisional liberty is ordered
returned to him, subject to the usual accounting and auditing procedure;
and
2.
In Criminal Case No. 26528, accused ALOYSIUS DAIT LUMAUIG is
hereby CONVICTED of the felony of Failure of Accountable Officer to Render
Accounts under Article 218 of the Revised Penal Code. He is hereby
sentenced to a straight penalty of six months and one (1) day and a fine of
Php1,000.00.
SO ORDERED.

13

On January 11, 2005, the Sandiganbayan promulgated its Resolution

petitioner's Urgent Motion for Reconsideration. 15

14

denying

Hence, this Petition.

After a thorough review of the records of the case and a judicious consideration of

the arguments of the petitioner, the Court does not find sufficient basis to reverse
the judgment of conviction. From the prevailing facts, we entertain no doubt on the
guilt of petitioner.

The acquittal of petitioner in the antigraft case is not a bar to his conviction
for failure to render an account in the
present case.
TEcADS

Petitioner stakes the present Petition on the assertion that since the cases for which
he was indicted involve the same subject cash advance in the amount of
P101,736.00, his exoneration in the anti-graft case should likewise exculpate him
from further liability in the present case.
We are not persuaded.
It is undisputed that the two charges stemmed from the same incident. "However,
[we have] consistently held that the same act may give rise to two or more
separate and distinct charges." 16 Further, because there is a variance between the
elements of the two offenses charged, petitioner cannot safely assume that his
innocence in one case will extend to the other case even if both cases hinge on the
same set of evidence.
To hold a person criminally liable under Section 3 (e) of RA 3019, the following
elements must be present:
(1)

That the accused is a public officer or a private person charged in

conspiracy with the former;

(2)

That said public officer commits the prohibited acts during the
performance of his or her official duties or in relation to his or her
public positions;

(3)

That he or she causes undue injury to any party, whether the

government or a private party;

(4)

That such injury is caused by giving unwarranted benefits, advantage

or preference to such parties; and

(5)

That the public officer has acted with manifest partiality, evident bad
faith or gross inexcusable negligence. 17

On the other hand, the elements of the felony punishable under Article 218 of the
Revised Penal Code are:
SAHIaD

(1)

That the offender is a public officer whether in the service or

separated therefrom;

(2)

That he must be an accountable officer for public funds or property;

(3)

That he is required by law or regulation to render accounts to the

COA or to a provincial auditor; and,

(4)

That he fails to do so for a period of two months after such account

should be rendered. 18

The glaring differences between the elements of these two offenses necessarily
imply that the requisite evidence to establish the guilt or innocence of the accused
would certainly differ in each case. Hence, petitioner's acquittal in the anti-graft
case provides no refuge for him in the present case given the differences between
the elements of the two offenses.
cSHIaA

Prior demand to liquidate is not a

requisite for conviction under Article
218 of the Revised Penal Code.
The central aspect of petitioner's next argument is that he was not reminded of his
unliquidated cash advances. The Office of the Special Prosecutor countered that
Article 218 does not require the COA or the provincial auditor to first make a
demand before the public officer should render an account. It is sufficient that there
is a law or regulation requiring him to render an account.
The question has been settled in Manlangit v. Sandiganbayan 19 where we ruled
that prior demand to liquidate is not necessary to hold an accountable officer liable
for violation of Article 218 of the Revised Penal Code:
. . . [W]e are asked to resolve whether demand is necessary for a conviction
of a violation of Article 218 of the Revised Penal Code.
EDcIAC

Citing United States v. Saberon, petitioner contends that Article 218

punishes the refusal of a public employee to render an account of funds in
his charge when duly required by a competent officer. He argues that he
cannot be convicted of the crime unless the prosecution has proven that
there was a demand for him to render an account. Petitioner asserts that
COA Circular No. 90-331 provides that the public officer shall be criminally
liable for failure to settle his accounts after demand had been made.
Moreover, petitioner asserts that the case had become moot and academic
since he already submitted his liquidation report.
For the People, the Office of the Special Prosecutor (OSP) counters that
demand is not an element of the offense and that it is sufficient that there is
a law or regulation requiring the public officer to render an account. The OSP
insists that Executive Order No. 292, Presidential Decree No. 1445, the COA
Laws and Regulations, and even the Constitution mandate that public
officers render an account of funds in their charge. It maintains that the
instant case differs from Saberon which involved a violation of Act No. 1740
where prior demand was required. In this case involving a violation of Article
218, prior demand is not required. Moreover, the OSP points out that
petitioner even admitted his failure to liquidate the funds within the
prescribed period, hence, he should be convicted of the crime.

We shall now resolve the issue at hand.

Article 218 consists of the following elements:
1.

that the offender is a public officer, whether in the service or

separated therefrom;

2.

that he must be an accountable officer for public funds or

property;

3.

that he is required by law or regulation to render accounts to

the Commission on Audit, or to a provincial auditor; and

4.

that he fails to do so for a period of two months after such

accounts should be rendered.
DHESca

Nowhere in the provision does it require that there first be a demand before
an accountable officer is held liable for a violation of the crime. The law is
very clear. Where none is provided, the court may not introduce exceptions
or conditions, neither may it engraft into the law qualifications not
contemplated. Where the law is clear and unambiguous, it must be taken to
mean exactly what it says and the court has no choice but to see to it that
its mandate is obeyed. There is no room for interpretation, but only
application.
Petitioner's reliance on Saberon is misplaced. As correctly pointed out by the
OSP, Saberon involved a violation of Act No. 1740 whereas the present case
involves a violation of Article 218 of the Revised Penal Code. Article 218
merely provides that the public officer be required by law and regulation to
render account. Statutory construction tells us that in the revision or
codification of laws, all parts and provisions of the old laws that are omitted
in the revised statute or code are deemed repealed, unless the statute or
code provides otherwise. 20
DCcHAa

Petitioner is liable for violation of Article

218 of the Revised Penal Code.
Section 5 of COA Circular No. 90-331, the circular in force at the time petitioner
availed of the subject cash advance, pertinently provides:
5.

LIQUIDATION OF CASH ADVANCES

5.1

The AO (Accountable Officer) shall liquidate his cash advance

as follows:
xxx xxx xxx
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.
DCIAST

Since petitioner received the subject cash advance sometime in 1994, he was,

thus, required to liquidate the same on or before January 20, 1995. Further, to
avoid liability under Article 218, he should have liquidated the cash advance
within two months from the time it was due, or on or before March 20, 1995. In
the case at bar, petitioner liquidated the subject cash advance only on June 4,
2001. Hence, as correctly found by the Sandiganbayan, petitioner was liable for
violation of Article 218 because it took him over six years before settling his
accounts.

The penalty imposed on petitioner

should be modified.
Petitioner argues that assuming that he is liable for violation of Article 218, he
should be meted a lesser penalty considering that (1) he subsequently liquidated
the subject cash advance when he later discovered and was confronted with his
delinquency, and (2) the COA did not immediately inform him of his unliquidated
cash advance.
On this point, we partially agree with petitioner.
In sentencing petitioner to a straight penalty of six months and one day of prisin
correccional and a fine of P1,000.00, the Sandiganbayan correctly considered the
mitigating circumstance of voluntary surrender, as borne by the records, 21 in favor
of petitioner. However, it failed to consider the mitigating circumstance of return or
full restitution of the funds that were previously unliquidated.
In malversation of public funds, the payment, indemnification, or reimbursement of
the funds misappropriated may be considered a mitigating circumstance being
analogous to voluntary surrender. 22 Although this case does not involve
malversation of public funds under Article 217 of the Revised Penal Code but rather
failure to render an account under Article 218 (i.e., the succeeding Article found in
the same Chapter), the same reasoning may be applied to the return or full
restitution of the funds that were previously unliquidated in considering the same
as a mitigating circumstance in favor of petitioner.
ADEacC

The prescribed penalty for violation of Article 218 is prisin correccional in its
minimum period or six months and one day to two years and four months, or by a
fine ranging from 200 to 6,000 pesos, or both. Considering that there are two
mitigating circumstances and there are no aggravating circumstances, under Article
64 (5) 23 of the Revised Penal Code, the imposable penalty is the penalty next lower
to the prescribed penalty which, in this case, is arresto mayor in its maximum
period or four months and one day to six months.
The Indeterminate Sentence Law, under Section 2, 24 is not applicable to, among
others, cases where the maximum term of imprisonment does not exceed one year.
In determining "whether an indeterminate sentence and not a straight penalty is
proper, what is considered is the penalty actually imposed by the trial court, after
considering the attendant circumstances, and not the imposable penalty." 25 In the
case at bar, since the maximum of the imposable penalty is six months, then the
possible maximum term that can be actually imposed is surely less than one year.

Hence, the Indeterminate Sentence Law is not applicable to the present case. As a
result, and in view of the attendant circumstances in this case, we deem it proper to
impose a straight penalty of four months and one day of arresto mayor and delete
the imposition of fine.
HaIATC

WHEREFORE, the Petition is GRANTED IN PART. The Decision of the

Sandiganbayan in Criminal Case No. 26528 dated September 10, 2004 convicting
petitioner of the felony of Failure of Accountable Officer to Render Accounts under
Article 218 of the Revised Penal Code is AFFIRMED with the following
MODIFICATIONS:
1.
Petitioner is sentenced to a straight penalty of four months and one day of
arresto mayor, and
2.

The imposition of fine in the amount of P1,000.00 is deleted.

SO ORDERED.

Carpio, Brion, Perez and Perlas-Bernabe, JJ., concur.

HIACac

Footnotes
1.

ARTICLE 218.Failure of Accountable Officer to Render Accounts . Any public

officer, whether in the service or separated therefrom by resignation or any other
cause, who is required by law or regulation to render account to the Insular
Auditor, or to a provincial auditor and who fails to do so for a period of two
months after such accounts should be rendered, shall be punished by prisin
correccional in its minimum period, or by a fine ranging from 200 to 6,000 pesos,
or both.

2.

Sandiganbayan records, pp. 202-219; penned by Associate Justice Ma. Cristina G.

Cortez-Estrada and concurred in by Associate Justices Francisco H. Villaruz, Jr.
and Teresita V. Diaz-Baldos.

3.

Id. at 278-281; penned by Associate Justice Ma. Cristina G. Cortez-Estrada and

concurred in by Associate Justices Roland B. Jurado and Teresita V. Diaz-Baldos.

4.

Id. at 3-4.

5.

Id. at 3.

6.

Exhibit "A," id. at 171.

7.

Exhibit "D," id. at 174.

8.

Exhibit "B," id. at 172.

9.

Id. at 65.

10.

See Joint Stipulation of Facts, id. at 115-A.

11.

Anti-Graft and Corrupt Practices Act.

12.

Sandigabayan records, pp. 202-219.

13.

Id. at 218-219.

14.

Id. at 278-281.

15.

Id. at 225-231.

16.

Suero v. People, 490 Phil. 760, 771 (2005).

17.

Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto, 585

Phil. 1, 14-15 (2008).

18.

Manlangit v. Sandiganbayan, 558 Phil. 166, 174 (2007).

19.

Id.

20.

Id. at 173-175.

21.
22.
23.

On June 1, 2001, petitioner voluntarily surrendered and posted his cash bail
bond. (Sandiganbayan records, p. 26)

Kimpo v. Court of Appeals , G.R. No. 95604, April 29, 1994, 232 SCRA 53, 62.
ARTICLE 64.Rules for the Application of Penalties Which Contain Three
Periods . In cases in which the penalties prescribed by law contain three periods,
whether it be a single divisible penalty or composed of three different penalties,
each one of which forms a period in accordance with the provisions of Articles 76
and 77, the courts shall observe for the application of the penalty the following
rules, according to whether there are or are no mitigating or aggravating
circumstances:
xxx xxx xxx
5.When there are two or more mitigating circumstances and no
aggravating circumstances are present, the court shall impose the penalty next
lower to that prescribed by law, in the period that it may deem applicable,
according to the number and nature of such circumstances.

24.

Section 2 of the Indeterminate Sentence Law provides in part:

Sec. 2.This Act shall not apply . . . to those whose maximum term of
imprisonment does not exceed one year. . . .

25.

Ladino v. Garcia, 333 Phil. 254, 259 (1996); People v. Dimalanta, 92 Phil. 239, 242
(1952).