Technical Malversation; OMB’s determination of probable cause

 RE: Technical Malversation; OMB’s determination of probable cause | 

It is well-settled that the Court will not ordinarily interfere with the Ombudsman’s determination of whether or not probable cause exists except when it commits grave abuse of discretion. 

Grave abuse of discretion exists where a power is exercised in an arbitrary, capricious, whimsical or despotic manner by reason of passion or personal hostility so patent and gross as to amount to evasion of positive duty or virtual refusal to perform a duty enjoined by, or in contemplation of law.

Thus, we held in Roxas v. Vasquez,

“[…} this Court’s consistent policy has been to maintain non-interference in the determination of the Ombudsman of the existence of probable cause, provided there is no grave abuse in the exercise of such discretion. This observed policy is based not only on respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the Court will be seriously 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 with cases if they could 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[.]”

In this case, the action taken by the Ombudsman cannot be characterized as arbitrary, capricious, whimsical or despotic. The Ombudsman found no evidence to prove probable cause. Probable cause signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man’s belief that the person accused is guilty of the offense with which he is charged. 

Here, the Complaint merely alleged that the disbursement for financial assistance was neither authorized by law nor justified as a lawful expense. Complainant did not cite any law or ordinance that provided for an original appropriation of the amount used for the financial assistance cited and that it was diverted from the appropriation it was intended for.

The Complaint charges Mayor Atienza with illegal use of public funds. On this matter, Art. 220 of the Revised Penal Code provides:

“Art. 220. Illegal use of public funds or property. – Any public officer who shall apply any public fund or property under his administration to any public use other than that for which such fund or property were appropriated by law or ordinance shall suffer the penalty of prision correccional in its minimum period or a fine ranging from one-half to the total of the sum misapplied, if by reason of such misapplication, any damages or embarrassment shall have resulted to the public service. In either case, the offender shall also suffer the penalty of temporary special disqualification.

If no damage or embarrassment to the public service has resulted, the penalty shall be a fine from 5 to 50 percent of the sum misapplied[.]”

The elements of the offense, also known as technical malversation, are: 

(1) the offender is an accountable public officer; (2) he applies public funds or property under his administration to some public use; and (3) the public use for which the public funds or property were applied is different from the purpose for which they were originally appropriated by law or ordinance. It is clear that for technical malversation to exist, it is necessary that public funds or properties had been diverted to any public use other than that provided for by law or ordinance. 

To constitute the crime, there must be a diversion of the funds from the purpose for which they had been originally appropriated by law or ordinance. Patently, the third element is not present in this case.

Conformably then with Section 2, Rule II of the Rules of Procedure of the Office of the Ombudsman, the Investigating Officer may recommend the outright dismissal of a complaint if he finds the same devoid of merit. That is exactly what happened in this case. Thus, no abuse of discretion, much less grave abuse, may be attributed to the respondent Ombudsman.

G.R. No. 156427             January 20, 2006

AMANDO TETANGCO, Petitioner
vs.
THE HON. OMBUDSMAN and MAYOR JOSE L. ATIENZA, JR., Respondents.

Read full text @

https://lawphil.net/judjuris/juri2006/jan2006/gr_156427_2006.html