[G.R. No. 142686. November 29, 2000]

NICASIO MA. CUSTODIO vs. SANDIGANBAYAN, et al.

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your Information, is a resolution of this Court dated NOV 29 2000.

G.R. No. 142686 (Nicasio Ma. Custodio vs. Sandiganbayan, et al.)

In his petition for certiorari with application for a temporary restraining order and/or a preliminary injunction, Nicasio Ma. S. Custodio seeks to set the respondent Sandiganbayan's Resolution dated 9 March 2000 denying his Demurer to Evidence in Criminal Case No. 23030 entitled "People of the Philippines vs. Gen. Cesar P. Nazareno, et al.," and Resolution dated 5 November 1999, denying his Motion for Reconsideration of the earlier resolution.

As antecedent, on 29 September 1995, the Office of the Ombudsman filed an information against petitioner together with Dir. Gen Cesar P. Nazareno, Dir. Evelino A. Nartatez, charging them with the violation of Sec. 3 (g) of RA 3019 (Anti-Graft and Corrupt Practices, as amended). Said information reads as follows:

That on or about January 1, 1991 and May 29, 1992,and for sometime prior or subsequent thereto, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the accused Cesar P. Nazareno, then Director General, Philippine National Police (PNP) and Everlino A. Nartatez and Nicasio Ma. S. Custudio, then Directors PNP Logistics Support Command, successively while in the performance of their official functions, taking advantage of their positions and committing crimes in relation to their offices, did then and there willfully, unlawfully and criminally conspiring with one another, enter in behalf of the said PNP contract/document with Beltra Industries, Inc., a private enterprise located at Philand Bldg., Javier cor. Santillan Sts., Makati for the supply of Five Thousand Six Hundred Eighty-One (5,681) units of caliber .45 pistol in the amount of One Hundred Five Million Three Hundred Eighty-Four Thousand Two Hundred Fifty-four Pesos and Seventy Centavos (P105,384,254.70), under terms and conditions manifestly and grossly disadvantageous to the government.

CONTRARY TO LAW. 1 Rollo , p. 37.

At the arraignment of 04 March 1997, petitioner entered a plea of "not guilty." 2 Id., at 6.

After the presentation of evidence by the Prosecution, petitioner filed his Demurrer to Evidence dated 22 July 1999. 3 Id., at 53-66.

The Demurrer to Evidence was denied in the assailed Resolution dated 3 November 1999, as follows:

This treats of the motion to dismiss on demurrer filed by accused Gen. Cesar P. Nazareno and Dir. Everlino P. Nartatez as well as that filed by Dir. Nicasio Ma. S. Custodio.

In both motions, the defense seeks to capitalize on the fact that the sale of pistols to the Philippine Navy is categorized as Foreign Military Sales (FMS) under the Military Assistance Program between the United States and the Philippines and therefore the lower Philippine Navy price is supposedly an accommodation. It may be so, although it may not necessarily be so. The accommodation could be on the other terms and conditions of the sale rather than on the pricing.

Therefore, the claim of the lower Philippine Navy price not being available to he Philippine National Police notwithstanding, after the prosecution has shown the rather big difference between the Philippine Navy price of P10,578.25 and the PNP price of P18,550.30 per unit of .45 caliber pistol, it would now be a matter of defense for the accused to show, among others, first, that the accommodation was on the pricing or included the pricing and, more importantly, to show the extent of the accommodation.

The thrust of the ground for the dismissal of the case relied upon by all the accused is to the effect that the PNP price of P18,550.30 per .45 caliber pistol is still reasonable despite the Philippine Navy price of P10,578.25 per .45 caliber pistol, despite the difference of P7,972.05, or of about P8,000.00 per unit because the Philippine Navy price is an accommodation precisely to that extent, an accommodation to the extent of about P8,000.00 reduction in the price per unit. This, of course, cannot just be assumed. It has to be proven, as a matter of defense, by the accused.

If only for this reason, both motions to dismiss on demurrer have to be denied.

Anent the claim of Dir. Nartatez to the effect that he "was not a signatory or participant in any capacity", suffice it to say that Undisputed Fact No. 5 agreed upon by the parties, as reflected in the Pre-Trial Order (p. 247, Vol. 1, Record), runs thus - "That the three (3) accused were signatories to the vouchers and other documents, more particularly the contract of purchase and sale of subject firearms mentioned in the Information."

In the appreciation of the Court, the prosecution's evidence - at this stage uncontroverted - has put the accused at peril of conviction if such evidence is not refuted with countervailing evidence sufficient to overcome the same.

Accordingly, both motions to dismiss on demurrer are in the meantime DENIED.

SO ORDERED. 4 Id., at 32-33.

Petitioner sought a reconsideration of the denial his Demurrer to Evidence, 5 Id., at 67-83.but the same was denied on March 9, 2000, where the Sandiganbayan stated:

This treats of accused Nazareno's and Custodio's "Motions for Reconsideration", both dated November 29, 1999, the Prosecution's "Comment" dated December 20, 1999, and accused Custodio's "Reply to Comment."

It may be, as the accused contend, that the Military Assistance Program covered only the Armed Forces of the Philippines and did not apply to the Philippine National Police. If the Program did not apply to the PNP, does it follow, as necessary inference, that the PNP therefore could not obtain the pistols at the same price elsewhere or even from the same source, for that matter, although not under the same Program but under some other arrangement, if mutually agreed upon? It would appear that it would not necessarily follow.

If X enters into a contract of sale with A for the sale by X to A 1,000 "Pilot Hi-Techpoint V5" ballpens at _45.00 per ballpen but does not enter into a similar contract with B, it may be said, as indeed must be said, that that contract between X and A does not apply to B. But, it would appear, that it does not necessarily follow from that alone, that B cannot obtain the same ballpen at the same price somewhere else, or even from X, for that matter, but under another contract or arrangement. There is nothing to stop X from selling to B or to another persons at the same price.

That appears to be the situation here and therefore it may be premature at this stage to dismiss the prosecution's case outright.

Accordingly, the motions for reconsideration have to be, as they are, in the meantime denied.

SO ORDERED. 6 Id., at 35-36.

Petitioner now seeks recourse to this Court and raises the following ground in support of his petition:

THE FIFTH DIVISION OF THE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF ITS JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN DENYING PETITIONER'S DEMURRER TO EVIDENCE. 7 Id., at 8.

Petitioner claims that the Prosecution failed to prove that the contracts entered into by the Philippine National Police for the supply of .45 caliber pistols were manifestly and grossly disadvantageous to the government. According to petitioner, the case of the prosecution is anchored on the premise that the unit cost as purchased by the PNP P18,550.30 per unit of firearm is disadvantageous to the government considering that the Philippine Navy was able to purchase the same at a price of P10,578.25. However, the prosecution witness from the Commission on Audit, Mr. Vicente Quiambao testified that he Philippine Navy bought the pistols at a price of P10,578.25 under a Military Assistance Program, hence said price is not applicable to the PNP. Petitioner further posits, that assuming arguendo the contracts were disadvantageous to the government, he should not be held liable as the prosecution failed to prove that he participated in the execution of the same. In the first place, he was not a signatory to the contract. The only evidence presented by the prosecution were photocopies of checks he allegedly signed to cover the transactions. Being photocopies, petitioner is of the position that the same should not be admitted in evidence. Assuming that the checks are admissible, the same does not still prove his guilt as at the time he issued the checks, the contracts were in full force and effect and it was ministerial on his part to issue the checks.

In its comment, 8 Id., at 109-116.the Office of the Prosecutor opposed the petition. According to the respondent, while the price P10,578.25 was made available to the Philippine Navy under a Military Assistance Program, this does not mean that the PNP could not gotten said firearms at the said price. Respondent maintains that the price of P18,550.30 for one unit of .45 caliber pistol paid by the PNP as compared to the price of P10,5550.25 as paid by the Philippine Navy is grossly and manifestly advantageous to the government. Anent petitioner's claim that the prosecution failed to prove that he participated in the execution of the contract, respondent points out that during the pre-trial conference, petitioner stipulated among others that "That three (3) accused were signatories to the vouchers and other documents, more particularly the contract of purchase and sale of subject firearms mentioned in the information." 9 Id., at 115.

We find no merit in the instant petition.

Petitioner entreats this Court to review the assessment made by the Sandiganbayan regarding the sufficiency of the prosecution's evidence while his case is still on trial. This, the Court cannot do. We have time and again ruled that the question of whether or not the evidence presented by prosecution is sufficient to convince the court that the defendant is guilty beyond reasonable doubt of the crime charged, rests entirely with the sound discretion of the trial court. 10 Cruz v. People 144 SCRA 677, 681 (1989), citing Joseph v. Villaluz, 89 SCRA 324, People v. Romero, 22 Phil 565.Any error of judgment on the part of the respondent court in denying the demurrer to evidence, cannot be considered as grave abuse of discretion correctable by certiorari. The established rule is that when an adverse interlocutory order is rendered, such as the denial of a demurrer of evidence, the remedy is not to resort to certiorari, but to continue on with the case in due course and, when an unfavorable verdict is handed down, to take an appeal in the manner authorized b law. 11 Bernardo B. Resoso v. Sandiganbayan, G.r. 124140, November 25, 1999, citing Qui�on vs. Sandiganbayan, 271 SCRA 575.

Factual findings of the Sandiganbayan are conclusive upon this Court, except where: (1) the conclusion is a finding grounded entirely on speculation, surmise and conjectures; (2) the inference is manifestly mistaken; (3) there is a grave abuse of discretion; and (4) the judgment is based on misapprehension of facts and the findings of fact of the Sandiganbayan are premised on the absence of evidence and are contradicted by the evidence on record. 12 Pare�o vs. Sandiganbayan, 256 SCRA 242, 265 (1996).

Petitioner failed to show the application of any of the above exceptions in the case at bench. Based on the records before this Court, we are of the opinion that the Sandiganbayan did not abuse its discretion in denying petitioner's demurrer to evidence. We agree with the respondent court that the claim of the petitioner that the price of P18,0550.30 is reasonable as the Philippine Navy price of P10,578.25 was based on an accommodation hence not available to them is a matter of defense and cannot simply be assumed 13 Rollo, p. 33.

WHEREFORE, the petition for certiorari is DISMISSED for lack of merit, with cost against petitioner.

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

Clerk of Court�


Back to Home | Back to Main

 

CLICK HERE FOR THE LATEST SUPREME COURT JURISPRUDENCE

PHILIPPINE SUPREME COURT DECISIONS

QUICK SEARCH

cralaw

 







chanrobles.com





ChanRobles Legal Resources:

ChanRobles On-Line Bar Review

ChanRobles Internet Bar Review : www.chanroblesbar.com

ChanRobles MCLE On-line

ChanRobles Lawnet Inc. - ChanRobles MCLE On-line : www.chanroblesmcleonline.com