G.R. No. 156427 January 20, 2006
AMANDO TETANGCO, Petitioner
THE HON. OMBUDSMAN and MAYOR JOSE L. ATIENZA, JR., Respondents.
Sometime on March 8, 2002, Amadeo Tetangco filed his Complaint before the Ombudsman alleging that on January 26, 2001, private respondent Mayor Atienza gave P3,000 cash financial assistance to the chairman and P1,000 to each tanod of Barangay 105, Zone 8, District I. Allegedly, on March 5, 2001, Mayor Atienza refunded P20,000 or the total amount of the financial assistance from the City of Manila when such disbursement was not justified as a lawful expense. In his Counter-Affidavit, Mayor Atienza denied the allegations and sought the dismissal of the Complaint for lack of jurisdiction and for forum-shopping. He asserted that it was the Commission on Elections (COMELEC), not the Ombudsman that has jurisdiction over the case and the same case had previously been filed before the COMELEC. Furthermore, the Complaint had no verification and certificate of non-forum shopping. The mayor maintained that the expenses were legal and justified, the same being supported by disbursement vouchers, and these had passed prior audit and accounting. The Investigating Officer recommended the dismissal of the Complaint for lack of evidence and merit. The Ombudsman adopted his recommendation. The Office of the Ombudsman, through its Over-all Deputy Ombudsman, likewise denied petitioner’s motion for reconsideration. Hence, a petition before the Supreme Court.
Whether or not the Ombudsman commits grave abuse of discretion in dismissing the Complaint?
The Ombudsman found no evidence to prove probable cause. Probable cause signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man’s belief that the person accused is guilty of the offense with which he is charged.
The Complaint charges Mayor Atienza with illegal use of public funds. On this matter, Art. 220 of the Revised Penal Code provides: “Art. 220. Illegal use of public funds or property. – Any public officer who shall apply any public fund or property under his administration to any public use other than that for which such fund or property were appropriated by law or ordinance shall suffer the penalty of prision correccional in its minimum period or a fine ranging from one-half to the total of the sum misapplied, if by reason of such misapplication, any damages or embarrassment shall have resulted to the public service. In either case, the offender shall also suffer the penalty of temporary special disqualification.
“The elements of the offense, also known as technical malversation, are: (1) the offender is an accountable public officer; (2) he applies public funds or property under his administration to some public use; and (3) the public use for which the public funds or property were applied is different from the purpose for which they were originally appropriated by law or ordinance.” It is clear that for technical malversation to exist, it is necessary that public funds or properties had been diverted to any public use other than that provided for by law or ordinance. To constitute the crime, there must be a diversion of the funds from the purpose for which they had been originally appropriated by law or ordinance. Patently, the third element is not present in this case.
In this case, the action taken by the Ombudsman cannot be characterized as arbitrary, capricious, whimsical or despotic. Here, the Complaint merely alleged that the disbursement for financial assistance was neither authorized by law nor justified as a lawful expense. Complainant did not cite any law or ordinance that provided for an original appropriation of the amount used for the financial assistance cited and that it was diverted from the appropriation it was intended for.