EN BANC

[G.R. No. L-54288. December 15, 1982.]

ARTURO DE GUZMAN, petitioner, vs. PEOPLE OF THE

PHILIPPINES and THE SANDIGANBAYAN, respondents.

Augusto S. Jimenez for petitioner.

The Solicitor General for respondents.

SYNOPSIS

Petitioner, a Travelling Collector and an accountable ocer of the City

of Manila, was found, upon audit, to have incurred a shortage in his
remittances amounting to P26,521.37. As consequence thereof, petitioner
was charged before the Sandiganbayan, which convicted him of the crime of
Malversation of Public Funds. On appeal by Certiorari, petitioner assails the
rule-making power of the Sandiganbayan as violative of Article X, Section 5
(5) of the Constitution, which vests in the Supreme Court the power to
promulgate rules concerning pleading, practice and procedure in all Courts
and impugns the authority of the First Division of the Sandiganbayan to hear
and decide his case contending that inasmuch as it was the only Division
which has been constituted, it could not legally function as a judicial body.
Petitioner also contends that there is dilution of his right to appeal because
Decisions of the Sandiganbayan are subject to review exclusively by the
Supreme Court only by Certiorari under Rule 45 of the Rules of Court, and
argues that he was deprived of his right to a preliminary investigation as the
same was conducted ex parte.
The Supreme Court, arming petitioner's conviction, held: (1) that an
accountable public ocer may be convicted of Malversation even if there is
no direct evidence of misappropriation and the only evidence is that there is
a shortage in his accounts which he has not been able to explain
satisfactorily; (2) that the Rules of the Sandiganbayan are by "constitutional
necessity" subject to the approval of the Supreme Court, pending whose
action thereon the Rules of Court should guide the proceedings thereat; (3)
that as long as a Division of the Sandiganbayan has been duly constituted, it
is a judicial body whose pronouncements are binding as judgments of the
Court; (4) that the fact that the decisions of the Sandiganbayan are
reviewable exclusively by the Supreme Court only by certiorari does not
constitute a dilution of the accused's right to appeal for the same reasons
given in Nuez vs. Sandiganbayan (111 SCRA 433); and (5) that a
preliminary investigation is waivable expressly or impliedly and may be
conducted ex parte under Presidential Decree No. 911.
Judgment appealed from, affirmed.
 SYLLABUS

1. CONSTITUTIONAL LAW; SANDIGANBAYAN; RULE-MAKING POWER

THEREOF UNDER PRESIDENTIAL DECREE NO. 1606; THE "RULES OF THE
SANDIGANBAYAN" ARE SUBJECT TO APPROVAL BY THE SUPREME COURT. It is
true that Section 9 of Presidential Decree No. 1606, the law creating the
Sandiganbayan, vests it with rule-making power. However, since the
Sandiganbayan is a Court, its rule-making power must be construed, out of
"constitutional necessity" as being subject to the approval of the Rules by the
Supreme Court. (Citing Justice Antonio Barredo's concurring opinion in Nuez vs.
Sandiganbayan, 111 SCRA 433, 455 [January 30, 1982]). The "Rules of the
Sandiganbayan" were promulgated on January 10, 1979, and Rule XV111
thereof expressly provides that they "shall take eect upon approval." The
approval referred to can only refer to approval by the Supreme Court. In the
absence of any action of approval or disapprobation from this Court, the
Sandiganbayan has to be guided by the Rules of Court. (Sec. 9, P.D. 1606). We
have reviewed the proceedings before the Sandiganbayan and we have not
found any indication therein of contravention of the Rules of Court.
2. ID.; ID.; DIVISIONS THEREOF; PRONOUNCEMENTS OF EACH
DIVISION ARE BINDING AS JUDGMENTS OF THE COURT. Although the
Sandiganbayan is composed of a Presiding Justice and eight Associate Justices, it
does not mean that it cannot validly function without all of the Divisions
constituted. Section 3 of P.D. 1606 provides that "the Sandiganbayan shall sit in
three divisions of three Justices each." While Section 5 thereof provides that "the
unanimous vote of the three justices in a division shall be necessary for the
pronouncement of a judgment." Thus, the Sandiganbayan functions in Divisions
of three Justices each and each Division functions independently of the other. As
long as a Division has been duly constituted it is a judicial body whose
pronouncements are binding as judgments of the Sandiganbayan. The judgment
convicting petitioner was a unanimous Decision of the First Division duly
constituted. It thus met the requirement for the pronouncement of a judgment
as required by Section 5 of P.D. 1606.
3. ID.; ID.; JUDGMENTS; EXCLUSIVE REVIEW THEREOF BY THE
SUPREME COURT ONLY BY CERTIORARI; NOT A DILUTION OF ACCUSED'S RIGHT
TO APPEAL; REASONS GIVEN IN NUEZ vs. SANDIGANBAYAN (111 SCRA 433)
REITERATED IN CASE AT BAR. Petitioner's contention that there is a dilution of
his right to appeal inasmuch as Decisions of the Sandiganbayan are subject to
review by the Supreme Court only by Certiorari under Rule 45 of the Rules of
Court and, consequently, he is deprived of his right to appeal on questions of fact,
is not meritorious, because "In the rst place, his innocence or guilt is passed
upon by the three-judge court of a division of respondent Court. Moreover, a
unanimous vote is required, failing which 'the Presiding Justice shall designate
two other justices from among the members of the Court to sit temporarily with
them, forming a division of ve justices and the concurrence of a majority of such
division shall be necessary for rendering judgment. Then if convicted, this Court
has the duty if he seeks a review to see whether any error of law was committed
to justify a reversal of the judgment. Petitioner makes much, perhaps
excessively, so as to the wont of advocates, of the fact that there is no review of
the facts. What cannot be suciently stressed is that this Court in determining
whether or not to give due course to the petition for review must be convinced
that the constitutional presumption of innocence has been overcome. In that
sense, it cannot be said that on the appellate level there is no way of scrutinizing
whether the quantum of evidence required for a nding of guilt has been
satised. The standard as to when there is proof of such weight to justify a
conviction is set forth in People vs. Dramayo." (Citing Nuez vs. Sandiganbayan,
pp. 450-451, 111 SCRA 433; see also Concurring opinion of Justice Antonio
Barredo).
4. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY
INVESTIGATION; WAIVABLE AND MAY BE CONDUCTED EX PARTE. Petitioner's
argument that he was deprived of his right to a preliminary investigation as the
same was conducted ex-parte has much less to recommend it. He failed to appear
at said investigation despite notice thereof received by a member of his family, in
the same way that the formal administrative investigation against him for
dishonesty, conduct prejudicial to the best interest of the service, and for
violation of civil service rules and regulations was similarly conducted ex parte
because of petitioner's failure to appear despite due notice served upon and
received by his wife, where he was found guilty as charged and dismissed from
the service eective on the day immediately following his last day of service,
with pay. Besides, an ex parte preliminary investigation is authorized under
Section 1 (b) of P.D. 911. It should also be recalled that the statutory right to a
preliminary investigation may be waived expressly or impliedly. Petitioner
waived it when he failed to appear for such investigation despite notice. The
denial of his petition for reinvestigation by the Tanodbayan was a matter of
discretion with the latter.
5. CRIMINAL LAW; MALVERSATION; PRESUMPTION UNDER ART. 217 OF
THE REVISED PENAL CODE; SHORTAGE IN THE ACCOUNTS OF AN
ACCOUNTABLE PUBLIC OFFICER IS PRIMA FACIE EVIDENCE OF
MISAPPROPRIATION; CASE AT BAR. In the face of the evidence presented,
petitioner failed to overcome the presumption under Art. 217 of the Revised
Penal Code that the failure of a public ocer to have duly forthcoming any public
funds or property with which he is chargeable, upon demand by any public
ocer, shall be prima facie evidence that he put such missing funds to personal
use. In Malversation, all that is necessary to prove is that the defendant received
in his possession public funds, that he could not account for them and did not
have them in his possession and that he could not give a reasonable excuse for
the disappearance of the same. An accountable public ocer may be convicted of
Malversation even if there is no direct evidence of misappropriation and the only
evidence is that there is a shortage in his accounts which he has not been able to
explain satisfactorily. (Aquino, The Revised Penal Code, Vol. II, 1976 Edition
citing U.S. vs. Melencio, 4 Phil. 331, [1905]); U.S. vs. Javier, 6 Phil. 334 [1906];
and People vs. Mingoa, 92 Phil. 856 [1953]).

DECISION
MELENCIO-HERRERA, J : p

An appeal by Certiorari from the Decision of respondent

Sandiganbayan 1 in Criminal Case No. 190 convicting petitioner, Arturo de
Guzman, of Malversation of Public Funds.
We resolved to "(a) give due course to the petition and (b) require the
parties to le their respective Memoranda on the constitutional questions
raised."
1. Petitioner assails the rule-making power of the Sandiganbayan
as violative of Article X, section 5(5) of the Constitution, which vests on the
Supreme Court the power to promulgate rules concerning pleading, practice
and procedure in all Courts.
It is true that Section 9 of Presidential Decree No. 1606, the law
creating the Sandiganbayan, vests it with rule-making power, thus:
"Sec. 9. Rule-making Power. The Sandiganbayan shall have
the power to promulgate its own rules of procedure and, pending such
promulgation, the Rules of Court shall govern its proceedings."
However, since the Sandiganbayan is a Court, its rule-making power
must be construed, out of "constitutional necessity" as being subject to the
approval of the Rules by the Supreme Court. Mr. Justice Antonio Barredo had
expressed this view in his Concurring Opinion in "Nuez vs. Sandiganbayan,
111 SCRA 433, 455 (January 30, 1982), when he said:

". . . the rule-making power granted to it (the Sandiganbayan) by

P.D. 1606 must of constitutional necessity be understood as signifying
that any rule it may promulgate cannot have force and eect unless
approved by the Supreme Court, as if they have originated therefrom."
The "Rules of the Sandiganbayan" were promulgated on January 10,
1979, and Rule XVIII thereof expressly provides that they "shall take eect
upon approval." The approval referred to can only refer to approval by the
Supreme Court. The Sandiganbayan has submitted its Rules to this Court. In
the absence of any action of approval or disapprobation from this Court the
Sandiganbayan has to be guided by the Rules of Court. 2 We have reviewed
the proceedings before the Sandiganbayan and we have not found any
indication therein of contravention of the Rules of Court.
2. Petitioner also impugns the authority of the First Division of the
Sandiganbayan to hear and decide his case contending that inasmuch as it
was the only division which had been constituted, it could not legally
function as a judicial body and, consequently, he was placed in a "precarious
predicament"
This argument must also fail. Although the Sandiganbayan is
composed of a Presiding Justice and eight Associate Justices 3 , it does not
mean that it cannot validly function without all of the Divisions constituted.
Section 3 of PD 1606 provides that "the Sandiganbayan shall sit in three
divisions of three Justices each". While Section 5 thereof provides that "the
unanimous vote of the three justices in a division shall be necessary for the
pronouncement of a judgment."
Thus, the Sandiganbayan functions in Divisions of three Justices each
and each Division functions independently of the other. As long as a Division
has been duly constituted it is a judicial body whose pronouncements are
binding as judgments of the Sandiganbayan.
The judgment convicting petitioner was a unanimous Decision of the
First Division duly constituted. It thus met the requirement for the
pronouncement of a judgment as required by Section 5 of PD 1606 supra.
We nd no substance to the argument that no member could be
expected to dissent because no special Division of ve Justices could then be
formed, considering that the Decision was a unanimous one and there was
no indication that any one of the three Justices had intended to dissent.
3. Petitioner's contention that there is a dilution of his right to
appeal inasmuch as Decisions of the Sandiganbayan are subject to review by
this Court only by Certiorari under Rule 45 of the Rules of Court 4 and,
consequently, he is deprived of his right to appeal on questions of fact, is
neither meritorious. On this point, this Court, speaking through Chief Justice
Enrique M. Fernando, stressed in the Nuez case:
"Even from the standpoint then of the American decisions relied
upon, it cannot be successfully argued that there is a dilution of the
right to appeal. Admittedly, under Presidential Decree No. 1486, there is
no recourse to the Court of Appeals, the review coming from this
Court. . . . Would the omission of the Court of Appeals as an
intermediate tribunal deprive petitioner of a right vital to the protection
of his liberty? The answer must be in the negative. In the rst place, his
innocence or guilt is passed upon by the three-judge court of a division
of respondent Court. Moreover, a unanimous vote is required, failing
which `the Presiding Justice shall designate two other justices from
among the members of the Court to sit temporarily with them, forming
a division of ve justices and the concurrence of a majority of such
division shall be necessary for rendering judgment. Then if convicted,
tins Court has the duty if he seeks a review to see whether any error of
law was committed to justify a reversal of the judgment. Petitioner
makes much, perhaps excessively so as to the wont of advocates, of
the fact that there is no review of the facts. What cannot be suciently
stressed is that tins Court in determining whether or not to give due
course to the petition for review must be convinced that the
constitutional presumption of innocence has been overcome. In that
sense, it cannot be said that on the appellate level there is no way of
scrutinizing whether the quantum of evidence required for a nding of
guilt has been satised. The standard as to when there is proof of such
weight to justify a conviction is set forth People vs. Dramayo." 5
Justice Barredo, in his Concurring Opinion also observed:
". . . I believe that the accused has a better guarantee of a real
and full consideration of the evidence and the determination of the facts
where there are three judges actually seeing and observing the
 demeanor and conduct of the witnesses. It is Our constant
jurisprudence that the appellate courts should rely on the evaluation of
the evidence by the trial court judges, except in cases where pivotal
points are shown to have been overlooked by them. With more reason
should this rule apply to the review of the decision of a collegiate trial
court. Moreover, when the Court of Appeals passes on an appeal in a
criminal case, it has only the records to rely on, and yet the Supreme
Court has no power to reverse its ndings of fact, with only the usual
exceptions already known to all lawyers and judges. I strongly believe
that the review of the decisions of the Sandiganbayan whose three
justices have actually seen and observed the witnesses as provided for
in P.D. 1606 is a more iron-clad guarantee that no person accused
before such special court will ever be nally convicted without his guilt
appearing beyond reasonable doubt as mandated by the Constitution."
6

4. Petitioner's argument that he was deprived of his right to a

preliminary investigation as the same was conducted ex parte has much less
to recommend it. Petitioner failed to appear at said investigation despite
notice thereof received by a member of his family, in the same way that the
formal administrative investigation against him for dishonesty, conduct
prejudicial to the best interest of the service, and for violation of civil service
rules and regulations was similarly conducted ex parte because of
petitioner's failure to appear despite due notice served upon and received by
his wife, where he was found guilty as charged and dismissed from the
service eective on the day immediately following his last day of service,
with pay (Exhibit "C").
Besides, an ex parte preliminary investigation is authorized under
section 1(b) of PD 911, reading:
". . . If respondent cannot be subpoenaed, or if subpoenaed be
does not appear before the investigating scal or state prosecutor, the
preliminary investigation shall proceed without him. . . ."
It should also be recalled that the statutory right to a preliminary
investigation may be waived expressly or impliedly Petitioner waived it
when he failed to appear for such investigation despite notice. The denial of
his petition for reinvestigation by the Tanodbayan was a matter of discretion
with the latter.
5. Finally, petitioner's contention that his conviction is not in accord
with law and jurisprudence is unmeritorious. The judgment against
petitioner sentenced him as follows:
"WHEREFORE, judgment is hereby rendered nding accused
Arturo de Guzman guilty beyond reasonable doubt as principal of the
crime of Malversation of Public Funds, as dened and penalized in
Article 217, paragraph 4, of the Revised Penal Code; and in default of
any modifying circumstance in attendance, sentencing him to an
indeterminate penalty ranging from Twelve (12) Years and one (1) Day,
as minimum. to Eighteen (18) Years, Eight (8) Months and One (1) Day,
as maximum, both of reclusion temporal with the accessories provided
 by law and with credit for preventive imprisonment undergone, if any, in
accordance with the provision of Article 29 of the Revised Penal Code,
as amended by Republic Act 6127; to suer perpetual special
disqualication; to pay a ne in the amount of Seventy Six Thousand
Five Hundred Twenty One and 37/100 Pesos P76,521.37); to indemnify
the City of Manila, Republic of the Philippines, in the same amount of
Seventy Six Thousand Five Hundred Twenty One and 37/100 Pesos
(P76,521.37) representing; amount malversed; and, to pay the costs."
We nd that the Sandiganbayan has not committed any error of law in
convicting petitioner. For the period from May 22, 1978 to June 7, 1978,
petitioner, as Travelling Collector and an accountable ocer, collected the
total amount of P204,319.32 from various agencies (Veterinary Inspection
Board, Public Health Laboratory, North Cemetery, among others) but
remitted to the General Teller (Mr. Gerardo Verder, now retired), Cash
Division Department of Finance, City of Manila, only P127,797.95, thus
resulting in a shortage of P76,521.37. Said shortage pertained to collections
of petitioner from the Veterinary Inspection Board (Exhibits "H-1-i" to "H-1-
a").
Petitioner's contention that his accountability was not proven
considering that the audit examination was conducted in his absence and
after he had signed the Report of Examination (Exhibit "H") in blank
presented to him by Auditing Examiner Maximo Pielago, thus making said
procedure irregular, is neither persuasive. If he was not present during the
audit examination, petitioner himself was to blame for he should have
known that when he received a demand letter from Pielago to produce his
accountabilities (Exhibit "G") on June 5, 1978 an examination would be
forthcoming. Upon petitioner's assurance that he had no more existing
accountabilities as he had ceased to make collections due to his expected
promotion, and his promise to produce his accountabilities on June 7 or 8,
1978, Pielago presented said Report of Examination to petitioner for
signature. On this point, we are in full agreement with the ndings of
respondent Court:
"Neither is there any merit in the accused's asseverations that his
accountability has not been proved. It is true that as candidly admitted
by Auditing Examiner Pielago himself, he made the accused sign the
Report of Examination (Exhibit H) in blank even before any examination
could be conducted. But, this rather irregular procedure is not
altogether without any reasonable examination. As uncontradictedly
explained by Pielago, he resorted to that course of action because,
upon his rst demand to the accused for the production of his cash
and cash items, the latter already told him that he had nothing to
account for anymore because he had since ceased making collection in
anticipation of his then supposed pending promotion. Evidently,
because of this assurance from the accused, Pielago may have thought
that the projected examination would be merely pro-forma and could
not possible result in anything but a zero-zero balance as far as the
accounts of the accused were concerned." 7
 It must be emphasized that petitioner did not report for work anymore
beginning June 9, 1978, despite a demand from Pielago for the production of
his accountabilities (Exhibit "M"), a reminder of his criminal liability, and the
fact that administrative charges had been led against him for violation of
civil service rules and regulations and conduct prejudicial to the best
interests of the service (Exhibit "F"). Pielago thus proceeded with the audit
examination of petitioner's accountability from the ocial records available
namely:
". . . Ocial Receipts issued by him to collection agents from
whom he received public funds (Exhibits H-1-a to H-1-n); Daily
Statements of Collections Exhibits I, I-1 to I-7) and Ocial Receipts
(Exhibits L, L-1 to L-8) covering remittances made by him of his
collection to the General Teller, the Ledger reecting entries of
collections made by him from the Veterinary Inspection Board (Exhibits
Q, Q-1, Q-1-a to Q-1-f, Q-2, Q-2-a to Q-2-e); and the Cashbooks also
recording his remittances of his collections to the General Teller
(Exhibits J, J-1, J-1-a, J-2, J-2-a, K, K-1, K-1-a, K-2-a, and K-2-b)" 8
As against the above documentary evidence, petitioner's posture that
he had turned over his collections everyday to Mr. Gerardo Verder, the
General Teller then, who had assured him that he would do the explaining,
is lame, indeed. Besides, he could not but admit his accountability for
receipts, with serial nos. 155901 to 155990, issued by him, but under the
accountability of Gregorio Sao, a travelling collector, because of petitioner's
own pending request for transfer of accountability. 9
In the face of the evidence presented, petitioner failed to overcome the
presumption under Art. 217 of the Revised Penal Code that the failure of a
public ocer to have duly forthcoming any public funds or property with
which he is chargeable upon demand by any public ocer, shall be prima
facie evidence that he has put such missing funds to personal use. In
Malversation, all that is necessary to prove is that the defendant received in
his possession public funds, that he could not account for them and did not
have them in his possession and that he could not give a reasonable excuse
for the disappearance of the same. An accountable public ocer may be
convicted of Malversation even if there is no direct evidence of
misappropriation and the only evidence is that there is a shortage in his
accounts which he has not been able to explain satisfactorily. 10
Neither do we nd tenable petitioner's contention that his
accountability was not established as the Report of Examination was
denominated by Pielago as "preliminary". As held by respondent Court:
"True, the report of the audit aforesaid was denominated as
`preliminary'. But, this does not imply that the same may not be taken
as basis for determining the extent of the accountability of the accused
as of the date of said audit. If there was anything tentative about the
nding made, it was only because collections of the accused under
ocial receipts known to be still in his possession and the stubs of
 which had not yet been submitted, were not yet accounted for. Hence,
the only meaning that the term `preliminary' had in the premises was
that the amount of shortage could still be increased if all said receipts
are eventually found and taken into account. But, on the basis of the
records available to the auditor, the amount of shortage established
could not but be considered final.
All told, we are convinced that the constitutional presumption of
innocence in petitioner's favor has been overcome and his guilt established
beyond reasonable doubt.
WHEREFORE, the judgment appealed from, convicting petitioner of the
crime of Malversation of Public Funds, is hereby affirmed.
Costs against petitioner, Arturo de Guzman.
SO ORDERED.
Fernando, C.J., Aquino, Guerrero, Abad Santos, De Castro, Plana,
Escolin, Vasquez, Relova and Gutierrez, Jr., JJ., concur.
Teehankee, J., reiterates his concurrence with the grounds of Justice
Makasiar's dissent in Nuez vs. Sandiganbayan, G.R. Nos. 50581 and 50617,
Jan. 30, 1982.
Makasiar, J., I reiterate my concurring and dissenting opinion in the
Nuez case; because the crime was committed several days before the
promulgation on June 11, 1978 of P.D. No. 1486 and eleven (11) months
before the promulgation on December 10, 1978 of P.D. 1606.
Footnotes

1. Penned by Justice Bernardo P. Fernandez and concurred in by Presiding

Justice Manuel R. Pamaran and Justice Romeo M. Escareal.

2. Sec. 9, PD 1606, supra.

3. Sec. 1 PD 1606.

4. Sec. 7, ibid.

5. Nuez vs. Sandiganbayan, pp. 450-451, supra.

6. Nuez vs. Sandiganbayan, p. 457, supra.

7. pp. 41-42, Rollo.

8. p. 42, ibid.

9. Exhibit "R", T.s.n., January 18, 1980, pp. 101-104.

10. Aquino, The Revised Penal Code, Vol. II, 1976 Edition U.S. vs. Melencio, 4
Phil. 331, (1905); U.S. vs. Javier, 6 Phil. 334 (1906); and People vs. Mingoa,
92 Phil. 856 (1953).