Jaraula v. Honorable Office of the Ombudsman

FIRST DIVISION

[G.R. No. 238506. November 18, 2021.]

CONSTANTINO G. JARAULA, petitioner,vs. THE HONORABLE OFFICE OF THE OMBUDSMAN AND FIELD INVESTIGATION, BUREAU OF THE OFFICE OF THE OMBUDSMAN REPRESENTED BY RONALD ALLAN D. RAMOS, respondents.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, First Division, issued a Resolution dated November 18, 2021which reads as follows:

"G.R. NO. 238506 (Constantino G. Jaraula v. The Honorable Office of the Ombudsman and Field Investigation, Bureau of the Office of the Ombudsman represented by Ronald Allan D. Ramos). — Before the Court is a Petition for Certiorari 1 under Rule 65 of the Rules of Court filed by Constantino G. Jaraula (Jaraula), then Representative for the Lone District of Cagayan de Oro City, assailing the Resolution 2 dated April 10, 2017 and Order 3 dated November 27, 2017 of the Office of the Ombudsman (Ombudsman) in OMB-C-C-14-0249. The challenged Resolution and Order found probable cause to indict petitioner Constantino G. Jaraula (Jaraula) for the crime of Malversation and violation of Section 3 (e) and (g) of Republic Act (R.A.) No. 3019 relative to the Seven Hundred Twenty-Eight Million Pesos (P728,000,000.00) Fertilizer Fund Scam. HTcADC

The Antecedents

The case stemmed from a Complaint 4 for Malversation under Article 217 of the Revised Penal Code (RPC) and violation of Section 3 (e) and (g) of R.A. No. 3019 or the Anti-Graft and Corrupt Practices Act filed by the Field Investigation Office of the Office of the Ombudsman (FIO-Ombudsman), represented by Roland Allan D. Ramos against Jaraula as representative from the lone district of Cagayan de Oro City, Jose F. Quitazol, Sr. (Quitazol) as Regional Technical Director of the Local Government Unit Support, Antonio N. Rosal (Rosal) as Chairman of the Committee on Accreditation, Eduardo B. Lecciones, Jr. (Lecciones) as Regional Executive Director, all from the Department of Agriculture (DA), Field Regional Unit VII, Ma. Reina L. Lumantas (Lumantas) as Budget Officer III, Claudio B. Artazo (Artazo) as Accountant III, Martino N. Cajita (Cajita) as Assistant Regional Director, all from the DA Regional Field Unit X, Joel S. Rudinas (Rudinas) of the Department of Agriculture, Godofredo P. Bajas (Bajas) as City Agriculturist, Evelyn D. De Leon (De Leon), Anabelle E. Luy (Luy), Maria Fe E. Escabarte (Escabarte), Jose G. Ardias (Ardias), Gertrudes E. Kilapkilap (Kilapkilap), Henry L. Bucalin (Henry), and Luzviminda O. Bucalin (Luzviminda) as officers and members of Philippine Social Development Foundation, Inc. (PSDFI) (collectively, respondents).

On March 23, 2004, DA Undersecretary Jocelyn I. Bolante authorized Regional Director Rufo C. Chan (Chan) of the DA Regional Field Unit X to enter into a Memoranda of Agreement (MOA) with the local government units (LGUs) within his jurisdiction to expedite the implementation of the DA's Farm Inputs/Far Implements Program (FIFI Program), and to sign and effect payments to the LGUs subject to the availability of existing funds and existing accounting and audit rules and regulations. 5

Based on the FIFI Program, the fund for the lone district of Cagayan de Oro City was released under Advice of Sub-Allotment (ASA) No. 345. 6 Subsequently, Allotment and Obligation Slip (ALOBS) No. MOOE-CONT 04-05-361 7 dated May 7, 2004 was issued in favor of PSDFI, a non-stock and non-profit organization registered with the Securities and Exchange Commission, for the fund transfer of Three Million Pesos (P3,000,000.00) for the FIFI Program of Cagayan de Oro City represented by Jaraula. The ALOBS was certified by Lumantas and Artazo. 8 Meanwhile, PSDFI was represented by Jaraula. 9

On the same day, Jaraula endorsed 10 PSDFI to Chan as the implementing non-governmental organization (NGO) for his project in the amount of Three Million Pesos (P3,000,000.00). 11 Consequently, Chan, Jaraula and De Leon (President of PSDFI) entered into a MOA 12 for the acquisition and distribution of agricultural supplies and inputs amounting to P3,000,000.00. The MOA provided that sixty-five percent (65%) or One Million Nine Hundred Fifty Thousand Pesos (P1,950,000.00) of the total amount shall be released upon its approval and signing, while the remaining thirty-five percent (35%) or One Million Fifty Thousand Pesos (P1,050,000.00) shall be released upon the completion of the project and submission of necessary documents. 13 The responsibilities of all the parties are stated in the MOA: 14

 

Rep. Jaraula	RD Chan	PSDFI
Allocate the amount of [P]3,000,000.00	Release the fund to the PSDFI for the implementation of the project	Administer, manage, and disburse the fund in accordance with the sound financial and accounting procedures per approved project documents.
Assist DA-RFU X in the monitoring and evaluation of the project to ascertain the status of the project, proper utilization of the fund in compliance with the MOA.	Conduct periodic monitoring and evaluation to ascertain the progress/accomplishments of the project, proper utilization of the fund and compliance with the provision in the MOA.	Implement the project in accordance with the objectives, guidelines and other requirement embodied in the approved project documents.
		Submit report of certificate of project completion and acceptance of project by the beneficiaries within 60 days after the completion of the project.
		Refund to DA Regional Field Unit X any unexpended balance of the fund at the end of the project's life.
		Refund to DA Regional Field Unit X any disallowed amounts after financial audit. 15

 

Accordingly, two disbursement vouchers (DV) were issued in favor of PSDFI for the purchase of Three Thousand Seven Hundred Fifty (3,750) bottles of liquid organic fertilizers (bottles of fertilizers): DV No. 04-05-1622, 16 in the amount of P1,950,000.00, was released on May 13, 2004, and DV No. 04-07-2796, 17 in the amount of P1,050,000.00, was released on July 19, 2004. 18 Both DVs were certified by Rudinas and Artazo, while Chan approved the same for payment. Subsequently, Check Nos. 105229 and 121957 signed by Rudinas and Chan, and Cajita and Rudinas, respectively, were issued in favor of PSDFI. 19 aScITE

The verified Report of Disbursement 20 showed that the P1,950,000.00 payment was already received by PSDFI from DA Regional Field Unit X; and as of May 2004, 3,750 bottles of fertilizers were already purchased from an unidentified seller for Eight Hundred Pesos (P800.00) per bottle. When said Report was issued, the DA Regional Field Unit X was still deficient by P1,050,000.00; hence, another voucher, DV No. 04-07-2796, was issued. 21 Notably, said Report was certified by De Leon and noted by Jaraula. 22

Subsequently, Jaraula, through Bajas, received the 3,750 bottles of fertilizers, as evidenced by Delivery Report No 04-041 23 while PSDFI issued Official Receipt No. 0225 dated May 14, 2004 and Official Receipt No. 0151 dated July 27, 2004, evidencing its receipt of payment. 24

As required by the terms of the MOA, De Leon issued a Certificate of Acceptance, stating that the lone district of Cagayan de Oro City accepted 3,750 bottles of fertilizers with a total cost of P3,000,000.00 (P800.00 per unit). Bajas signed such Certificate of Acceptance. 25

Upon examination, the Commission on Audit (COA) observed that PSDFI's transactions for Ten Thousand (10,000) bottles of fertilizers in the entire Region X (including the 3,750 bottles acquired by Jaraula) were overpriced by Six Million Six Hundred Sixty-One Thousand One Hundred (P6,661,100.00). Per COA's canvass, a bottle of liquid fertilizer costs One Hundred Thirty-Three Pesos and 89/100 (P133.89) only; thus, the bottles sold by PSDFI at P800.00 per bottle were overpriced by Six Hundred Sixty-Six Pesos and 11/100 (P666.11). 26 In its Certification 27 issued on June 24, 2010, the COA also stated that Jaraula failed to submit a List of Farmer-Recipients/Beneficiaries also known as the Distribution List to prove that there was actual purchase and distribution. It likewise noted in Audit Observation Memorandum No. AOM-ASI-04 its concern regarding PSDFI's equity at the time of the transaction (P311,933.20), stating thus:

"10. We are very concerned that the NGOs were awarded with several Million Pesos contract while its total equity is only a miniscule compared with the above-stated contract amount, as follows:

 

NGOs	Assets	Liabilities	Equity
xxx
PSDFI	326,933.20	15,000.00	311,933-20
xxx

 

xxx xxx xxx

13. Such situation, except for the special mitigating circumstances cited in paragraph 11 for all but one foundations, gives doubt on the capability of the foundation to undertake the project beyond its financial and operational capability as required by COA Circular No. 96-003 as amended and place the agency in a manifestly and grossly disadvantageous situation with possible violation of Section Nos. 3(c) and 3(g) of Republic Act No. 3019." 28

On the basis of the foregoing, the FIO-Ombudsman concluded that the respondents colluded with one another in committing the crime of Malversation and violation of Section 3 (e) and (g) of R.A. No. 3019.

Preliminarily, the FIO-Ombudsman averred that there was conspiracy to commit malversation under Article 217 of the RPC and falsification of public documents when Quitazol, Rosal and Lecciones issued PSDFI's Certificate of Accreditation, stating that it complied with COA Circular No. 96-003, when in fact it did not. 29

According to FIO-Ombudsman, PSDFI's financial statements from 2000 to 2007 disclosed that its sole source of funds came from DA projects and grants, thus disproving its financial stability. The financial statements likewise failed to identify the projects which it had undertaken for the DA to reasonably assess its expertise in implementing the projects to be funded. 30 Thus, the act of wrongfully accrediting PSDFI was a scheme to allow it to take public funds, thereby causing injury to the government. Furthermore, the FIO-Ombudsman added that PSDFI made it appear that it purchased liquid fertilizers from an unknown seller only to justify the DA's subsequent payments to it. It also observed that the Accomplishment Report, 31 purportedly to prove that Jaraula already received the 3,750 bottles, was submitted by PSDFI as a mere formality as it mentioned another NGO, 32 which was not even privy to the transaction, as the partner of Jaraula in augmenting the farmers' needs. Moreover, the FIO-Ombudsman argued that the respondents fell short of their obligation under the terms of the MOA in monitoring and evaluating the status of the project, proper utilization of funds, and its compliance with the MOA provisions. 33

Likewise, the FIO-Ombudsman noted that there was no list of farmer-recipients who benefited from the purchased bottles of fertilizers. In fact, the COA found that PSDFI failed to submit a distribution list, naming the beneficiaries. It thus strongly implies that there was no actual purchase nor distribution of the bottles, contrary to what was stated in the disbursement vouchers, Report of Disbursement, and Accomplishment Report. 34 HEITAD

On the alleged violation of R.A. No. 3019, the FIO-Ombudsman claimed that the bottles of fertilizers from PSDFI were overpriced, as each bottle cost only P133.50. Hence, the amount of P3,000,000.00 paid to PSDFI for 3,750 bottles was indeed excessive as the aggregate amount should only be Five Hundred Two Thousand Eighty-Seven Pesos and 50/100 (P502,087.50). Moreover, the FIO-Ombudsman alleged that respondents-public officers' failure to conduct periodic monitoring and evaluation to ascertain the progress/accomplishments of the project and proper utilization of the fund caused undue injury to the government and gave unwarranted benefits to PSDFI when it was awarded the FIFI project despite its failure to comply with COA Circular No. 96-003. 35

In his Counter-Affidavit, 36 Jaraula denied the charges against him. For one, he contended that the COA Report did not even allege that he was in custody or in control of the P3,000,000.00. Jaraula stressed that what he received was only 3,750 bottles of fertilizers. As he did not have a hand in these transactions, he emphasized that he never allocated the P3,000,000.00 in favor of PSDFI.

He also averred that there was no unwarranted preference given to PSDFI as it was accredited by DA Regional Field Unit VII, and that Chan even certified such accreditation. Thus, Jaraula claimed that his endorsement of PSDFI was not an order that it shall be chosen from among the NGOs, but a mere request.

On his failure to submit a distribution list, Jaraula countered that the 3,750 bottles of fertilizers were in fact received by the City Agriculturist, who distributed the same to 40 rural barangays, and 25 interland barangays. He added that he monitored the distribution of the fertilizers to the farmers, who even sent him their gratitude.

Lumantas, Artazo, Rudinas, and Bajas filed their separate Counter-Affidavits, denying the allegations against them. 37

In a Resolution 38 dated April 10, 2017, the Ombudsman found probable cause against Jaraula, Quitazol, Rosal, Lecciones, Lumantas, Artazo, Cajita, Rudinas, Bajas, De Leon, Luy, Escabarte, Ardias, Kilapkilap, Henry and Luzviminda for the crime of malversation under Article 217 of the RPC and violation of Section 3 (e) of R.A. No. 3019; and probable cause against Jaraula and De Leon for violation of Section 3 (g) of R.A. No. 3019.

Preliminarily, the Ombudsman found that the provisions of COA Circular No. 96-003 on accreditation requirements and on the minimum contractual stipulations which must be embodied in the MOA were not complied with.

In finding probable cause for the crime of Malversation, the Ombudsman prudently identified the specific participation of each respondent: 39

 

Public Official	Agency/Business	Participation
Representative Constantino G. Jaraula (Jaraula)	House of Representatives	For endorsing the PSDFI to RD Chan in the implementation of the FIFIP.   For entering into MOA with the PSDFI despite non-compliance with COA Circular No. 96-003. For noting and signing the Report of Disbursement despite the lack of certificate of acceptance by farmer beneficiaries.   For noting and signing the Accomplishment Report despite the lack of certificate of acceptance by farmer beneficiaries.
Jose F. Quitazol, Sr. (Quitazol)	Regional Technical Director, DA, RFU No. VII	For accrediting the PSDFI despite incomplete documentary requirements required under COA Circular No. 96-003.
Antonio N. Rosal (Rosal)	Chairman, Committee on Accreditation, DA, RFU No. VII	For accrediting the PSDFI despite incomplete documentary requirements required under COA Circular No. 96-003.
Eduardo B. Lecciones, Jr. (Lecciones)	Regional Executive Director, DA, RFU No. VII	For accrediting the PSDFI despite incomplete documentary requirements required under COA Circular No. 96-003.
Ma. Reina L. Lumantas (Lumantas)	Budget Officer III, DA, RFU No. X	For certifying Allotment and Obligation Slip (ALOBS) No. MOOE-CONT-04-05-361 classified under Allotment Class Maintenance and Other Operating Expenses (MOOE) despite not falling under the class of MOOE.
Claudia B. Artazo (Artazo)	Accounting III, DA, RFU No. X	For certifying Allotment and Obligation Slip (ALOBS) No. MOOE-CONT-04-05-361 despite not falling under the class of MOOR.   For certifying DV Nos. 04-05-1622 and 04-07-2796 despite incomplete documentary requirements provided under COA Circular No. 96-003 and the MOA.
Joel S. Rudinas (Rudinas)	Regional Technical Director, DA, RFU No. X	For certifying DV Nos. 04-05-1622 and 04-07-2796 despite incomplete documentary requirements provided under COA Circular No. 96-003 and the MOA.   For signing Check No. 105229 covering the amount of [P]1,950,000.00 despite said incomplete documentary requirements.   For signing Check No. 121957 covering the amount of [P]1,050,000.00 despite said incomplete documentary requirements.
Martino N. Cajita (Cajita)	Assistant Regional Director, DA, RFU No. X	For signing Check No. 121957 covering the amount of [P]1,050,000.00 despite said incomplete documentary requirements under COA Circular No. 96-003 and the MOA.
Godofredo P. Bajas	City Agriculturist, Cagayan de Oro City	For failing to provide the list of beneficiaries with proof of their receipt despite having signed Delivery Receipt Report No. 04-041 and Certificate of Acceptance, and having been requested by RD Chan of said list.
Trustees and officers of PSDFI in 2002, namely:   Evelyn D. De Leon Annabelle E. Luy Maria Fe E. Escabarte Jose G. Ardias Gertrudes E. Kilapkilap Henry L. Bucalin Luzviminda O. Bucalin	President Vice President Treasurer Auditor Secretary Member Member	For receiving the payments totaling to [P]3 Million.   For failing to submit report of certificate of project completion and acceptance by the farmer beneficiaries as required under the MOA.   For failing to comply with the requirements under COA Circular No. 96-003 such as (a) require beneficiaries to issue certificate of acceptance for accomplished/completed projects; (b) submit the required financial and physical status report; (c) submit to the Government Organization (GO) certificate of accomplishment with required evidence, and for projects involving assistance of [P]100,000.00 or more, duly audited financial statements.   For failing to comply with the provisions of Republic Act No. 9184 in the purchase of fertilizers.

 

On this note, the Ombudsman found that Jaraula, Quitazol, Rosal, Lecciones, Lumantas, Artazo, Cajita, Rudinas, Bajas, consented or through abandonment or negligence, permitted PSDFI to take the P3,000,000.00 from public funds despite the latter's failure to comply with the provisions of COA Circular No. 96-003. That their failure to properly review PSDFI's qualifications and documents submitted to support its disbursements exhibited deliberate lack of care or diligence in the performance of their respective duties so as to achieve a common design of defrauding the government. The Ombudsman likewise found probable cause against De Leon, Luy, Escabarte, Ardias, Kilapkilap, Henry and Luzviminda, as private persons, who conspired with such accountable officers. ATICcS

On the alleged violation of Section 3 (e) of R.A. No. 3019, the Ombudsman opined that Jaraula, in conspiracy with De Leon, entered into a MOA on behalf of the government, the terms and conditions of which were unmistakably inimical to the interest of the government as it was not in compliance with COA Circular No. 96-003. The Ombudsman, however, found no sufficient evidence on the allegation that the liquid fertilizers were overpriced. Thus:

WHEREFORE, finding probable cause for one (1) count of Malversation under Article 217 of the Revised Penal Code, one (1) count [of] Section 3(e) of RA No. 3019 against CONSTANTINO G. JARAULA, JOSE F. QUITAZOL, SR., ANTONIO N. ROSAL, EDUARDO B. LECCIONES, JR., MA. REINA L. LUMANTAS, CLAUDIA B. ARTAZO, MARTINO N. CAJITA, JOEL S. RUDINAS, GODOFREDO P. BAJAS, EVELYN D. DE LEON, ANABELLE E. LUY, MARIA FE E. ESCABARTE, JOSE G. ARDIAS, GERTRUDES E. KILAPKILAP, HENRY L. BUCALIN, and LUZVIMINDA O. BUCALIN, and one (1) count [of] Section 3(g) of RA No. 3019 against CONSTANTINO G. JARAULA and EVELYN D. DE LEON, let the corresponding Informations be filed against them with the appropriate court.

SO ORDERED. 40

Jaraula, Lumantas, Artazo, Cajita, Rudinas, and Bajas filed their respective Motions for Reconsideration (MR). Jaraula basically reiterated his earlier assertions in his Counter-Affidavit, while Lumantas, Artazo, Cajita, and Rudinas alleged that Lumantas' only participation was to certify the existence of funds; that Artazo signed the DV as requested by Chan; that Cajita signed the check relying on the Accomplishment Report issued by the PSDFI signed by De Leon and noted by Jaraula; that Rudinas signed the DV and checks for the initial release of funds only because the same was supported by the MOA; and that Bajas' duty to receive the fertilizer was merely ministerial. They all alleged that they were misled by inadvertence into believing on the trustworthiness of Cong. Jaraula that the fertilizers were delivered to the beneficiaries. 41

In an Order 42 dated November 27, 2017, the Ombudsman denied the MRs for lack of merit. Preliminarily, it noted that the MRs filed by Lumantas, Artazo, Cajita, Rudinas, and Bajas were filed out of time. Nevertheless, their assertions were mere reiterations of the issues already passed upon by the Ombudsman in its April 10, 2017 Resolution.

Hence, the instant petition.

Essentially, Jaraula contends that the Ombudsman's finding of probable cause to indict him of Malversation and violation of Section 3 (e) and (g) of R.A. No. 3019 has no sufficient basis; and that his right to speedy disposition of a case was violated when the resolution of the Ombudsman, finding probable cause, was issued only after 12 years, counting from the commencement of the fact-finding investigation.

In their Comment, 43 the Ombudsman and the FIO-Ombudsman, through the Office of the Solicitor General (OSG), assail Jaraula's resort to petition for certiorari for not being the appropriate remedy; asserts that the factual finding of the Ombudsman on the existence of probable cause has full basis in evidence and should thus he accorded with respect; and claims that Jaraula's right to speedy disposition of a case was not violated as the delay was reasonable under the circumstances.

In his Reply, 44 Jaraula insists on the propriety of a petition for certiorari in assailing the Ombudsman's finding of probable cause and maintains that the finding of probable cause was erroneous.

The Issues

The issues in this case are: (1) whether or not the Ombudsman committed grave abuse of discretion in finding probable cause against Cong. Jaraula for the crime of Malversation and violation of Section 3 (e) and (g) of R.A. No. 3019; and (2) whether or not Jaraula's right to speedy disposition of a case was violated.

Our Ruling

Rule 65 is the proper remedy to

It is well-settled that the remedy of an aggrieved party from a resolution of the Ombudsman on criminal charges finding probable cause or lack thereof is to file a certiorari petition under Rule 65 of the Rules of Court before the Supreme Court. 45 Contrary to the assertion of the OSG, Jaraula's resort to a petition for certiorari is proper.

Thus, we proceed to discuss the substantive issues raised.

The Ombudsman's determination

In line with the constitutionally-vested authority of the Ombudsman to conduct investigation against any public official or employee, well-established in our jurisprudence is the rule that the Court does not interfere with the Ombudsman's investigatory and prosecutorial powers in passing upon criminal complaints lodged against public officers. 46 After all, the determination of probable cause is a "highly factual matter," delving into facts and circumstances which would excite a belief that a person is indeed guilty of the crime charged. 47

Nevertheless, despite the Ombudsman's competency, the Court is called upon to exercise its judicial power of review when grave abuse of discretion is imputed, 48 meaning, that the Ombudsman's exercise of power "must have been done in an arbitrary or despotic manner which must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform the duty enjoined or to act at all in contemplation of law." 49 TIADCc

In this case, Jaraula alleges grave abuse of discretion on the part of the Ombudsman in indicting him for the crime of Malversation under Article 217 of the RPC and violation of Section 3 (e) and (g) of R.A. No. 3019.

We now resolve.

At the outset, the Ombudsman found that PSDFI's accreditation was non-compliant with COA Circular No. 96-003, which states:

3.3 The following shall be the requirements for the NGO/PO accreditation:

3.3.1 Certificate of registration with the Securities and Exchange Commission (SEC), and/or with either the Cooperatives Development Authority (CDA) or the Department of Labor and Employment (DOLE), as the case may be, depending on the nature of the service required or to be rendered. This is to ensure that the NGO/PO has a legal personality, has officers who are responsible and accountable for its operations, and is based in the community where the project shall be implemented.

3.3.2 Financial statements for at least three (3) years operation to ensure that:

• It has a stable financial condition so that the fund assistance shall not be its sole source of funds; and

• It has proven experience in fund management so that the grant shall be managed efficiently and economically.

3.3.3 For NGO/PO which has been in operation for less than 3 years, proof that it had previously implemented similar projects and a certificate from LGU concerned attesting to the credibility and capability of the officers and staff of the NGO/PO shall be submitted in lieu of financial statements.

3.3.4 List of projects it has previously undertaken to show its experience and expertise in implementing the project to be funded.

As observed by the Ombudsman, PSDFI's financial statements disclosed that its funds were sourced from grants, donations, and minimal membership fees; thus, refuting its stable financial conditions. There was likewise no evidence which proved that PSDFI submitted a list of projects it had previously undertaken, which would show its experience and expertise.

Notably, as well, are the terms of the MOA that failed to incorporate the requirements under Section 3.4 of the Circular:

3.4 The GO and the NGO/PO shall enter into a Memorandum of Agreement (MOA) or similar document, incorporating the following requirements:

3.4.1 Project statement including identification of beneficiaries;

3.4.2 Standards for project implementation by the NGO/PO and acceptance by the GO to include completion date;

3.4.3 Systems and procedures for project implementation such as but not limited to, the procurement of goods and services by the NGO/PO and the schedule of release of the fund assistance by the GO. In the development of the system and procedures, the GO and the NGO/PO shall be guided by generally accepted management principles for economical, efficient and effective operations;

3.4.4 Project cost estimates and time schedules; and

3.4.5 Reporting, monitoring and inspection requirements.

xxx xxx xxx

A perusal of the MOA reveals that there was no provision on the completion date of the project, procedure on the procurement of the liquid fertilizers, and cost estimates and time schedule.

Likewise, even those express stipulations in the MOA were not observed by the parties as there was no proof that the liquid fertilizers were received by the beneficiaries. 50 On this score, the Ombudsman noted the Certification 51 issued by Edwin Gaa Canios as State Auditor to the effect that the List of Farmer Recipients/Beneficiaries or Distribution List relative to the purchase of liquid fertilizers was not submitted to the COA. Confirming this fact is a DA Report-List of NGOs with MOA and Financial Statements Data, 52 categorically stating that Jaraula did not submit a list of farmer-beneficiaries of its project with PSDFI.

From these factual circumstances, the Ombudsman concluded the existence of probable cause relative to the charges against Jaraula and his co-respondents.

Malversation is defined and penalized under Article 217 of the RPC, as amended by R.A. No. 10951. The elements of malversation under said provision of law are: (a) that the offender is a public officer; (b) that he or she had custody or control of funds or property by reason of the duties of his or her office; (c) that those funds or property were public funds or property for which he or she was accountable; and (d) that he or she appropriated, took, misappropriated or consented, or through abandonment or negligence, permitted another person to take them. 53

First. It is undisputed that Jaraula, Quitazol, Rosal, Lecciones, Lumantas, Artazo, Cajita, Rudinas, Bajas were public officers at the time of the disbursement of public funds for the purchase of liquid fertilizer from PSDFI. Second. The funds appropriated are public in character. Third. It must be considered that there was a finding of conspiracy among the respondents as the disbursement of public funds was effected by the following acts: (1) Lecciones, Rosal and Quitazol accredited PSDFI despite failure of the latter to comply with COA Circular 96-003; (2) Jaraula endorsed PSDFI and subsequently entered into a MOA with De Leon disregarding the provisions of said COA Circular; and (3) Rudinas, Artazo, Cajita, and Lumantas, through the issuance of ALOBS, checks and disbursement vouchers, certified the release of public funds despite lack of documentary requirements. AIDSTE

As observed by the Ombudsman, respondents who were public officers, exhibited deliberate lack of care or diligence in the performance of their respective duties when they failed to properly review PSDFI's qualifications and the documents the latter submitted to support the disbursements. Their actions evince their intention to achieve a common design of facilitating the illegal release of public funds. 54 Moreover, probable cause was likewise found against De Leon, Luy, Escabarte, Ardias, Kilapkilap, Henry and Luzviminda, being co-conspirators in the transaction.

On this note, Jaraula alleges that there can be no conspiracy when the crime involved is malversation through negligence as conspiracy necessitates malicious intent.

In finding probable cause, the Ombudsman found that respondents "consented or through abandonment or negligence, permitted PSDFI to take the P3 Million fund despite failure to comply with the requirements of COA Circular No. 96-003 and with the MOA." 55

The Ombudsman clarified that since malversation may be committed either intentionally or by negligence, which are merely modes of committing the crime, 56 a finding of one or the other satisfies the requirement of probable cause to indict Jaraula.

In Zoleta v. Sandiganbayan, 57 the Court explained that the evidence necessary to sustain conviction would ultimately determine the proper modality of the crime of malversation. Thus, whether Jaraula should be held liable for the crime of intentional malversation or malversation through negligence must be ascertained during the trial on the merits after presentation of the prosecution and the defense's respective evidence. At this stage, thus, there is no reason to disturb the findings of the Ombudsman. 58

On the charges of violation of Section 3 (e) and (g) of R.A. No. 3019, the law provides:

Sec. 3. Corrupt practices of public officers. — In addition to act or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

xxx xxx xxx

(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.

xxx xxx xxx

(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited thereby. x x x

Under Section 3 (e), it is necessary that: (a) the offender is a public officer discharging administrative, judicial, or official functions; (b) he or she must have acted with manifest partiality, evident bad faith or gross inexcusable negligence; and (c) his or her action caused any undue injury to any party, including government, or gave any private party unwarranted benefits, advantage or preference in the discharge of his functions. 59

On the other hand, Section 3 (g) requires that: (1) that the accused is a public officer; (2) that he or she entered into a contract of transaction on behalf of the government; and (3) that such contract or transaction is grossly and manifestly disadvantageous to the government. 60

The Ombudsman observed that Jaraula and his co-respondents, who acted in conspiracy, were discharging their official functions as public officers, when the transaction took place. Through their respective participation, they collectively consented to the disbursement of public funds in the amount of P3,000,000.00 in favor of PSDFI despite PSDFI's failure to comply with COA Circular No. 96-003 and despite the incomplete documentary requirements to effect reimbursement. Thus, the Ombudsman found that respondents acted with manifest impartiality, evident bad faith, or gross inexcusable negligence, causing undue injury to the government and giving unwarranted benefits, advantage or preference in PSDFI's favor. De Leon, Luy, Escabarte, Ardias, Kilapkilap, Henry and Luzviminda, being co-conspirators of the above-mentioned respondents in the transaction, were likewise indicted as conspirators in the transaction.

Also, the fact that Jaraula entered into a MOA with De Leon, knowing that the same did not fully comply with the requirements of the law and thus inimical to the interest of the government, substantiates the Ombudsman's finding of Jaraula's ostensible liability under Section 3 (g) of R.A. No. 3019.

Considering the foregoing, We find that the Ombudsman committed no grave abuse of discretion in finding probable cause. Its findings were based on evidence on record and on its consideration of the allegations and assertions of all the parties. 61 The Ombudsman did not have to inquire as to whether there was sufficient evidence to secure a conviction. 62 It is enough that the factual circumstances established a prima facie case against the respondent. 63 Ultimately, "[a] finding of probable cause needs only to rest on evidence showing that more likely than not, the accused committed the crime." 64 It does not mean absolute certainty, but is merely based on opinion and reasonable belief. 65 AaCTcI

There was no inordinate delay

Jaraula contends that his right to speedy disposition of a case was violated in view of the period that has lapsed, i.e., nine years from the time that the alleged irregularities were discovered by the COA until a formal complaint was filed against him by the FIO-Ombudsman and almost three years from the time he submitted his Counter-Affidavit until the Ombudsman issued its Resolution, finding probable cause, manifesting inordinate delay.

The argument deserves scant consideration.

In Cagang v. Sandiganbayan, 66 the Court abandoned the doctrine in People v. Sandiganbayan, Fifth Division67 and enunciated that the fact-finding investigations, which are not adversarial in nature, should not be counted in determining inordinate delay, viz.:

When an anonymous complaint is filed or the Office of the Ombudsman conducts a motu proprio fact-finding investigations, the proceedings are not yet adversarial. Even if the accused is invited to attend these investigations, this period cannot be counted since these are merely preparatory to the filing of a formal complaint. At this point, the Office of the Ombudsman will not yet determine if there is probable cause to charge the accused.

This period for case build-up cannot likewise be used by the Office of the Ombudsman as unbridled license to delay proceedings. If its investigation takes too long, it can result in the extinction of criminal liability through the prescription of the offense.

Considering that fact finding investigations are not yet adversarial proceedings against the accused, the period of investigation will not be counted in the determination of whether the right to speedy disposition of cases was violated. Thus, this Court now holds that for the purpose of determining whether inordinate delay exists, a case is deemed to have commenced from the filing of the formal complaint and the subsequent conduct of the preliminary investigation. In People v. Sandiganbayan, Fifth Division, the ruling that fact-finding investigations are included in the period for determination of inordinate delay is abandoned. 68

Thus, the reckoning period for the determination of the delay begins from the filing of the formal complaint and the subsequent conduct of the preliminary investigation.

Guided by the foregoing, We hold that Jaraula's right to speedy disposition of a case was not violated.

For the purposes of determining inordinate delay, the period to be reckoned with is the filing of the formal complaint by the FIO-Ombudsman on August 4, 2014, and not from the time that the COA conducted its audit investigation. After the complaint was filed, the 16 respondents were directed to submit their respective counter-affidavits. In Jaraula's case, he filed the same on October 12, 2014. Subsequently, a Resolution finding probable cause to indict the respondents was finalized on July 24, 2017 and was approved by the Ombudsman on July 31, 2017. At this point, only two years and 11 months had passed. To this Resolution, respondents still filed their respective MRs, which were denied in an Order dated November 27, 2017. Said Order was approved by the Ombudsman on December 20, 2017.

Considering the number of accused persons involved, who each filed separate counter-affidavits and were given equal opportunity to study the evidence against them and provide answers therefor, there was no inordinate delay in the conduct and termination of preliminary investigation. The delay, if any, was inevitable and was neither unreasonable, vexatious, capricious, nor oppressive. 69 There was also no allegation or proof that the proceedings before the Ombudsman were tainted with malice or politically motivated. 70 As can be gleaned from the Resolution of the Ombudsman, it made an independent, exhaustive, and detailed findings anent the ostensible culpability of Jaraula and his co-respondents. It did not merely adopt the reports and findings of the COA.

Moreover, it must be noted that this is the first time and only in this petition for certiorari that Jaraula decided to question the delay. Clearly, he was well aware of the case and proceedings against him and could have questioned it earlier rather than remain indifferent with the passage of time. As held in People of the Philippines v. Sandiganbayan (First Division), 71 citing Cagang, the invocation of the right to speedy disposition of a case must be timely raised through an appropriate motion; otherwise, the delay would be construed as acquiesced or waived.

Similarly, in Republic v. Sandiganbayan and Leonardo B. Roman, 72 the Court pronounced that "the right of an accused to speedy disposition of cases is not a magical invocation which can be cunningly used by the accused for his or her advantage. This right is not a last line of remedy when accused find themselves at the losing end of the proceedings. The State's duty to prosecute cases is equally as important, and this cannot be disregarded at the whim of the accused, especially when it appears that the contention was raised as a mere afterthought." 73

WHEREFORE, premises considered, the instant petition is DISMISSED. Accordingly, the Resolution dated April 10, 2017 and Order dated November 27, 2017 of the Office of the Ombudsman in OMB-C-C-14-0249 are hereby AFFIRMED. EcTCAD

SO ORDERED." Lopez, M., J.,on official leave.

By authority of the Court:

(SGD.) LIBRADA C. BUENADivision Clerk of Court

By:

MARIA TERESA B. SIBULODeputy Division Clerk of Court

 

Footnotes

1.Rollo, pp. 3-34.

2.Id. at 35-55.

3.Id. at 56-62.

4.Id. at 63-89.

5.Id. at 67.

6.Id. at 229.

7.Id. at 234.

8.Supra note 5.

9.Id. at 37.

10.Id. at 236.

11.Id.

12.Id. at 237-241.

13.Id. at 68.

14.Id. at 68-69.

15.Id.

16.Id. at 242.

17.Id. at 243.

18.Id. at 69.

19.Id. at 70.

20.Id. at 248.

21.Id. at 71.

22.Id. at 248.

23.Id. at 247.

24.Id. at 70.

25.Id.

26.Id. at 76-77.

27.Id. at 251.

28.Id. at 76-77.

29.Id. at 77-78.

30.Id. at 78.

31.Id. at 249.

32.Id. at 79. Part of the Report reads: "x x x The liquid fertilizers were delivered to the DA RFU-X and were subsequently distributed to the selected recipient as coordinated to the office of Congressman Constantino G. Jaraula (sic) The farmers were oriented in the proper way to maximize the production and achieve the goal of the project. After the completion of this project, the office (sic) Congressman Constantino G. Jaraula (sic) and the People's Organization for Progress and Development Foundation, Inc., expects to augment the primary needs of the farmers family income (sic) and consequently uplift their living conditions."

33.Id. at 81.

34.Id. at 79-80.

35.Id. at 83-84.

36.Id. at 399-423.

37.Id. at 41-42.

38.Supra note 2.

39.Id. at 47-50.

40.Id. at 53. (Boldface in the original).

41.Id. at 59.

42.Supra note 3.

43.Id. at 462-478.

44.Id. at 482-501.

45. See Yatco v. Office of the Deputy Ombudsman for Luzon, G.R. No. 244775, July 6, 2020, citing Baviera v. Zoleta, 535 Phil. 292, 312-314 (2006).

46. See Garcia, Jr. v. Office of the Ombudsman, 747 Phil. 445, 457 (2014).

47. See Dischaves v. Office of the Ombudsman, 802 Phil. 564, 589 (2016).

48.Id.

49.Cambe v. Office of the Ombudsman, 802 Phil. 190, 214 (2016).

50. C. The PSDFI shall:

xxx xxx xxx

7. Submit report of certificate of project completion and acceptance of project by the beneficiaries within sixty (60) days after the completion of the project;

51.Rollo, p. 251.

52.Id. at 253.

53.Zoleta v. Sandiganbayan, 765 Phil. 39, 53 (2015).

54.Rollo, p. 50.

55.Id. at 47.

56. See Zoleta v. Sandiganbayan, supra note 53.

57.Id.

58. See Ganaden v. Office of the Ombudsman, 665 Phil 224, 232 (2011).

59.Presidential Commission on Good Government v. Gutierrez, 772 Phil. 91, 102 (2015).

60.Id.

61.Cambe v. Office of the Ombudsman, 802 Phil. 190, 218 (2016).

62.Imingan v. Office of the Honorable Ombudsman, G.R. No. 226420, March 4, 2020.

63.Cambe v. Office of the Ombudsman, supra note 61.

64.Presidential Commission on Good Government v. Office of the Ombudsman, 781 Phil. 643, 656 (2016).

65. See Reyes v. Ombudsman, 783 Phil. 304, 333 (2016), citing Fenequito v. Vergara, Jr., 691 Phil 335, 345 (2012).

66.Cagang v. Sandiganbayan, Fifth Division, G.R. Nos. 206438, 206458 & 210141-42, July 31, 2018.

67. The Court ruled that fact-finding investigations are included in determining inordinate delay; 723 Phil. 444 (2013).

68. Citations omitted.

69.See People of the Philippines v. Sandiganbayan, First Division, G.R. No. 240776, November 20, 2019.

70.Cagang v. Sandiganbayan, supra note 66.

71.Supra.

72. G.R. No. 231144, February 19, 2020.

73.Id.