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Malversation Of Public Funds Or Property


ART.217

ELEMENTS:
1. That the offender be a public officer (or private person if
   entrusted with public funds or if in connivance with public
   officers);
2. That he had the custody or control of funds or property (if
   not accountable for the funds, crime committed is theft or
   qualified theft);
3. That those funds or property were public funds or property
   (even if private funds, they become public if attached,
   seized, deposited or commingled with public funds); and
4. That he...
   a. Appropriated the funds or property
   b. Took or misappropriated them
   c. Consented or, through abandonment or negligence, permitted
      any other person to take such public funds or property.

It is not necessary that the offender profited by his malversation.
His being remiss in the duty of safekeeping public funds violates
the trust reposed.

Public funds taken need not be misappropriated.

Malversation is otherwise called embezzlement.

It can be committed either with malice or through negligence or
imprudence (penalty is the same).

In determining whether the offender is a public officer, what is
controlling is the nature of his office and not the designation -
contemplates public officer who receives money or property from
government for which he is bound to account, must have authority
to collect or receive

The funds or property must be received in an official capacity.
Otherwise, the crime committed is estafa.

Government funds include revenue funds and trust funds. If funds
or property placed in custody of public officer, and they are
accountable, such funds or property partake nature of a public fund.

A public officer who has qualified charge of gov’t property without
authority to part with its physical possession upon order of an
immediate superior cannot be held liable under this article.

A qualified charge of properties does not qualify to possession
contemplated in the crime of malversation where the possessor is
only accountable to his immediate superior and not the government;
his superior is the one accountable to the government

Private individuals can also be held liable for malversation under 
2 circumstances:
   1. when they are in conspiracy with public officers; and
   2. when they have charge of national, provincial or municipal
      funds, revenues or property in any capacity.

In malversation through negligence, the negligence of the accountable
public officer must be positively and clearly shown to be inexcusable,
approximating fraud or malice. The measure of negligence to be observed
is the standard of care commensurate with the occasion.

When malversation is not committed through negligence, lack of
criminal intent or good faith is a defense.

The failure of a public officer to have any duly forthcoming public
funds or property upon demand, by any authorized officer, shall be
prima facie evidence that he has put such missing funds or property
to personal use. However, if at the very moment when the shortage is
discovered, the accountable officer is notified, and he immediately
pays the amount from his pocket, the presumption does not arise.

Returning the embezzled funds is not an exempting circumstance but
only mitigating.

There is also no malversation when the accountable officer is
obliged to go out of his office and borrow the amount corresponding
to the shortage and later, the missing amount is found in an
unaccustomed place.

A person whose negligence made possible the commission of
malversation by another can be held liable as a principal
by indispensable cooperation.

Demand by or damage to the government are not necessary elements of
the crime of malversation.

Technical malversation is not included in the crime of malversation.


Presumption of misappropriation:
   When a demand is made upon an accountable officer and he cannot
   produce the fund or property involved, there is a prima facie
   presumption that he had converted the same to his own use.

   There must be indubitable proof that thing unaccounted for exists.
   Audit should be made to determine if there was shortage. Audit
   must be complete and trustworthy. If there is doubt, presumption
   does not arise.


People v. Hipol, GR 140549, 7/22/03
The fact that the obligation to deposit the collections of the City
Treasurer's Office is not covered by appellant's official job
description is of no legal consequence in a prosecution for
Malversation. What is essential is that appellant had custody or
control of public funds by reason of the duties of his office.

Quizo v. Sandiganbayan
The accused incurred shortage (P1.74) mainly because the auditor
disallowed certain cash advances the accused granted to employees.
But on the same date that the audit was made, he partly reimbursed
the amount and paid it in full three days later. The Supreme Court
considered the circumstances as negative of criminal intent. The
cash advances were made in good faith and out of good will to
co-employees which was a practice tolerated in the office. There
was no negligence, malice, nor intent to defraud.

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Bigwas

I'm Bigwas, It is just an Alias. I have a degree in Criminology. I'm a blogger who loves to write about anything that cross my mind. I hope you learn something from my blog.

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