[G.R. Nos. 142071-142122. November 22, 2000]

DATU ZACARIA A. CANDAO vs. 1st DIV., SANDIGANBAYAN

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your Information, is a resolution of this Court dated NOV 22 2000.

G.R. Nos. 142071-142122 (Datu Zacaria A. Candao vs. First Division, Sandiganbayan.)

This resolves petitioner's Motion for Reconsideration of our Resolution dated March 29, 2000, dismissing the instant petition for certiorari.

Petitioner's main contention is that the Informations filed against him in Criminal Case No. 25469-25620 before the Sandiganbayan charge him with three offenses, in violation of the rule prohibiting multiple charges (Rules of Court, Rule 117, Section 3 [e]). We dismissed the petition upon a finding that petitioner was not without remedy; he should have filed a motion to quash the Informations. It is axiomatic that a petition for certiorari will lie only where there is no appeal; or any plain, speedy and adequate remedy in the ordinary course of law (1997 Rules of Civil Procedure, Rule 65, Section 1).

In his Motion for Reconsideration, petitioner contends that his failure to file a motion to quash should not be deemed as a waiver of his right to object to the Informations, since the defect therein is substantial and affects the jurisdiction of the court. He argues that while the Informations state that he is being charged with malversation under Article 217 (4) of the Revised Penal Code, the inclusion of the phrase "without the required disbursement voucher," in conjunction with the statement that the accused withdrew public funds from the depository account of the Office of the Provincial Governor, likewise defined the acts committed as constituting violation of Section 4 (6) of Presidential Decree No. 1445. Furthermore, during the hearing on October 13, 1998, the prosecution manifested that the accused are being prosecuted under Article 218 of the Revised Penal Code. Hence, petitioner and his co-accused are charged with three distinct offenses under the Informations.

On June 21, 2000, we directed the respondent to comment on the Motion for Reconsideration.

In its Comment, the prosecution maintained that petitioner is being charged only with malversation under Article 217 of the Revised Penal Code. The phrase "without the required disbursement voucher" merely described the commission of the crime of malversation. Insofar as Article 218 of the Revised Penal Code is concerned, the prosecution, in its Comment dated November 18, 1998 filed before the Sandiganbayan, clarified that it mistakenly cited Article 218 when it really meant Article 217.

Petitioner filed a Motion for Leave to File Reply, together with his Reply. Subsequently, he filed a Supplemental Reply. Upon closer scrutiny, however, we find that the allegations in the Supplemental Reply do not refer to transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented, in contravention of Rule 10, Section 6 of the 1997 Rules of Civil Procedure. Petitioner further argues in the Supplemental Reply that he cannot be expected to examine each voucher and check that comes to him for signature. This, however, is a matter which pertains to the merits of the case and should not even be raised at this stage.

We agree with the prosecution that the allegations contained in the Informations refer to the crime of malversation only, as define in Article 217. This is clear from a careful reading of the Information attached as Annex "A" of the petition. Indeed, there is nothing therein which suggests that the accused are also being charged with the crime of failure to render accounts, defined in Article 218. The prima facie evidence of malversation, referred to by the prosecution at the hearing of October 13, 1998, can be found in the last paragraph of Article 217; thus indicating that what the prosecution really meant to cite at the time was the said provision and not Article 218.

Petitioner's contention that the Informations charge him with violation of Section 4 (6) of P.D. 1445 is negated by the Sandiganbayan's own declaration, contained in the assailed Resolution dated January 31, 2000, quoted hereunder:

"Likewise, it is clear that the accused are charged not for withdrawing public funds without the required voucher but for misappropriation or embezzlement of the funds withdrawn."

Based on the foregoing, therefore, we cannot sustain petitioner's argument that the defect in the Informations is substantial and affects the jurisdiction of the court. On the contrary, we find no such defect in the Informations.

ACCORDINGLY, the Motion for Reconsideration is DENIED WITH FINALITY.

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

Clerk of Court


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