REPUBLIC OF THE PHILIPPINES ~anbi ganbapansb.judiciary.gov.ph/DECISIONS/2018/C_Crim_23750-51... ·...

$: REPUBLIC OF THE PHILIPPINES ~anbi ganbapansb.judiciary.gov.ph/DECISIONS/2018/C_Crim_23750-51... · People vs. Batutay, et al. Crim. Case Nos. 23750-5\; 23765-66; 23768 ... GENERALAO,$
REPUBLIC OF THE PHILIPPINES

~anbi ganbapanQuezon City

Fifth Division

PEOPLE OF THE PHILIPPINES, Crim. Case No. 23750Plaintiff,

- versus -

PONCIANO BATUTAY,GENARO TOLEDO, NESTORMONTECILLO, JOSE GAPAS,GRACE DOLORES CHAN,PEDRO GAMONES, NORBERTO .APARICIO, LEONIDA POLO andGLORIA BUCALA,

Accused.x------------------------------------------xPEOPLE OF THE PHILIPPINES, Crim. Case No. 23751

Plaintiff,

- versus -

PONCIANO BATUTAY,GENARO TOLEDO, MAXIMINOGENERALAO, GRACEDOLORES CHAN, PEDROGAMONES, NORBERTOAP ARICIO, LEONIDA POLO andGLORIA BUCALA,


Plaintiff,

- versus -

DECISIONPeople vs. Batutay, et al.Crim. Case Nos. 23750-5\; 23765-66; 23768; 2377\-72; 23774; 23776Page 2 of \7

MELVA PACANA, BONIFACIOHALOOT JR., MAXIMINOGENERALAO, ROBERTO DEVERA, FEL Y ASI, LYDIADUMAS, ENRITA DELVO,CARMELITA MARBAN, JOSEGATUS and ROMEO BUCALA,


Plaintiff,

- versus -

MELVA PACANA, MAXIMINOGENERALAO,NESTORMONTECILLO, JOSE GAPAS,ROBERTO DE VERA, FEL Y ASI,LYDIA DUMAS, ENRITADELVO, CARMELITA MARBAN,JOSE GATUS and EDMUNDABUGAN,


Plaintiff,

- versus -

MELV A PACANA, BONIFACIOHALOOT JR., MAXIMINOGENERALAO, ROBERTO DEVERA, FELY ASI, LYDIADUMAS, ENRITA DELVO,CARMELITA MARBAN, JOSEGATUS and GLORIA BUCALA,


Plaintiff,

- versus -

DECISIONPeople vs. Batutay, et al.Crim. Case Nos. 23750-51; 23765-66; 23768; 23771-72; 23774; 23776Page 3 of 17

MELVA PACANA, LYDIADUMAS, BONIFACIO HALOOTJR., JOSE GAP AS, FEL Y ASI,ENRITA DELVO, CARMELITAMARBAN, GORGONIOTAGARDA JR., JOSE GA TUS andGLORIA BUCALA,

Accused.x------------------------------------------xPEOPLE OF THE PHILIPPINES,

Plaintiff,

- versus -

MELVA PACANA, LYDIADUMAS, BONIFACIO HALOOTJR., JOSE GAP AS, FEL Y ASI,GORGONIO TAGARDA JR.,ENRITA DELVO, CARMELITAMARBAN, JOSE GATUS andGLORIA BUCALA,


Plaintiff,

- versus -

MELVA PACANA, LYDIADUMAS, BONIFACIO HALOOTJR., JOSE GAP AS, FEL Y ASI,GORGONIO TAGARDA JR.,ENRITA DELVO, CARMELITAMARBAN, JOSE GATUS andEDMUND ABUGAN,


Plaintiff,

- versus -

MELVA PACANA, LYDIADUMAS, NESTOR

Crim. Case No. 23772



For: Violations of Section 3(g) ofRep. Act No. 3019


MONTECILLO, HIPOLITOTALAVERA, ANITA DELACRUZ, CARMELITA MARBAN,GORGONIO TAGARDA JR.,JOSE GATUS, MAXIMINOGENERALAO and GLORIABUCALA,

Present:

LAGOS, J., Chairperson,MENDOZA-ARCEGA andCORPUS-MANALAC, JJ.

Promulgated:JldrrJi :J(),~()I~,1--- __

x-----------------------------------------------------------------------------------------x

Accused.

DECISION

LAGOS, J.:

Together with a number of eo-accused, accused Norberto Aparicio andCarmelita Marban are charged under different Informations in theseconsolidated cases, all for violation of section 3(g) of Rep. Act No. 3019.1

This disposes of the respective cases against these particular two accused,specifically Crim. Case Nos. 23750 and 23751 against accused Aparicio andCrim. Case Nos. 23765, 23766, 23768, 23771, 23772, 23774 and 23776against accused Marban.

The accusatory portion of the Amended Information in Crim. Case No.23750, under which accused Aparicio is charged, reads:

"That on or about July 11, 1989, in Cagayan de Oro City,Philippines, and within the jurisdiction of this Honorable Court, theabovenamed accused, Property Custodian and canvasser Ponciano Batutay(Salary Grade [SG] below 27), Community Environment and NaturalResources Officer (CENRO) Genaro T. Toledo (SG below 27), ChiefRegional Executive Director Jose R. Gapas (SG 27), PBAC Chairman andmembers Pedro Gamones, Grace Dolores Chan, Norberto Aparicio andLeonida Polo, all of DENR Region-X, Cagayan de Oro City, while in theperformance of their duties committing the acts in relation to their officeand with grave abuse of confidence, did then and there, willfully andunlawfully, in conspiracy with each other, award to and enter into a contract,in behalf of DENR, with Gloria N. Bucala, of GNB General Merchandisewith address at 103-A Hocos Sur St. Bago Bantay, Quezon City, for thepurchase of seeds for and in consideration of P59,950.00 as actually paidunder Disbursement Voucher No. 8908015 which was signed and approvedby them, which contract was grossly and manifestly disadvantageous to thegovernment as the seeds only cost the total amount of P53,975.00 therebyresulting in an overprice amounting to P5,975.00, to the damage andprejudice of the government in such amount ofP5,975.00."

I The case numbers ofal! the consolidated cases are Crim. Case Nos. 23750 to 23753 and 23755 to 23781.


The Amended Informations in the other cases against these two accusedare similarly worded but with the following different alleged details:

Crim. Date (on Accused Position Accused- D.V. AmountCase or Supplier No. ofNo. about) (item Damage

supplied) (in Pesos)23751 27 Ponciano Batutay Property Gloria N. 89110058 65,000.00

October Custodian & Bucala1989 Grace Dolores Chan Canvasser (seeds)

Adm. Asst. 11&Genaro T. Toledo PBAC MemberMaximino Generalao CENROPedro Gamones RTD-ResearchNorberto Aparicio PBAC ChairmanLeonida Polo PBAC Member

PBAC Member23765 11 Melva T. Pacana Chief, General Romeo 89121161 100,000.00

December Services Bucala1989 Maximino Generalao RTD-Research (plastic

Bonifacio Haloot Jr. Supervising Chief bags)Accountant

Roberto G. de Vera RTD-ForestryFely Asi CanvasserJose P. Gatus PBAC ChairmanLydia G. Dumas PBAC MemberEnrita M. Delvo PBAC MemberCarmelita I. Marban PBAC Member

23766 11 Melva T. Pacana Chief, General Edmund 89121161 150,000.00December Services B. Abugan1989 Maximino Generalao RTD-Research (plastic

Nestor Montecillo Chief Accountant bags)111

Jose R. Gapas Regional Exec.Director


23768 28 Melva T. Pacana Chief, General Gloria N. 89121161 250,000.00December Services Bucala1989 Maximino Generalao RTD-Research (seeds)

Bonifacio Haloot Jr. Supervising ChiefAccountant


23771 29 Melva T. Pacana Chief, General Gloria N. 89120295 157,500.00December Services Bucala1989 Lydia G. Dumas Chief, Gen. Adm. (seeds)

Section & PBACMember

Jose R. Gapas RegionalTechnical Dir.

Fely Asi CanvasserJose P. Gatus PBAC ChairmanGorgonio Z. Tagarda PBAC MemberEnrita M. Delvo PBAC MemberCarmelita I. Marban PBAC Member


23772 29 Melva T. Pacana Chief, General Gloria N. 89129431 170,000.00December Services Bucala1989 (seeds)

Lydia G. Dumas Chief, Gen. Adm.Section & PBACMember


Jose R. Gapas RegionalExecutive Dir.


23774 29 Melva T. Pacana Chief, General Edmund 89120296 28,000.00December Services B. Abugan1989 Lydia G. Dumas Chief, Gen. Adm. (supplies)

Section & PBACMember


Jose R. Gapas RegionalExecutive Dir.


23776 15 June Melva T. Pacana Chief, General Gloria N. 89060032 74,000.001989 Services Bucala

Lydia G. Dumas Chief, Gen. Adm. (seeds)Section & PBACMember

Nestor Montecillo Chief AccountantIII

Hipolito Talavera RegionalExecutive Dir.

Annie dela Cruz CanvasserJose P. Gatus PBAC ChairmanGorgonio Z. Tagarda PBAC MemberCarmelita I. Marban PBAC Member

In a Decision promulgated on 27 July 2016, this Court acquittedaccused Hugo Bafiosia, Lucila Cagulada, Grace Dolores Chan, Roberto DeVera, Enrita Delvo, Belino Epie, Jose Gapas, Jose Gatus, Bonifacio Haloot,Gloria Lim, Manolito Pasco, Leonida Polo, Cenon Rojas, Elpidio Tabaco,Remigio Timoteo, David Valdez, Carmelita Babao and Genaro Toledo of allthe charges against them for failure of the prosecution to prove their guilt?

In the same Decision, this Court ordered the archiving of the casesagainst accused Edmund Abugan, Remigio Agarrado, Norberto Aparicio,Rosario Apola, Ponciano Batutay, Gloria Bucala, Romeo Bucala, AlmaEdralin, Pedro Gamones, Maximino Generalao, Carmelita Marban, GregorioRabanes, Gorgonio Tagarda, Hipolito Talavera, and Norma Tantoy.3

2 Decision dated 27 July 2016 (dispositive portion), pp. 65-66.3 Id.


The cases with respect to other accused, whose cases resulted in neitheracquittal nor archival, were dismissed for various reasons."

Insofar as accused Aparicio'' and Marban" are concerned, on 10November 2000, this Court issued warrants of arrest against them. On evendate, this Court also issued hold departure orders against these two accused."Jurisdiction over the persons of these accused were not obtained as they wereneither arrested nor did they voluntarily surrender. Thus, the cases againstthem were archived when the Decision of27 July 2017 was promulgated,"

In a resolution dated 9 December 2016, the Court granted accusedMarban's motion to revive the cases in which she is an accused, which areCrim. Case Nos. 23765,23766,23768,23771,23772,23774 and 23776.9

In a resolution dated 20 February 2017, the Court likewise grantedaccused Aparicio' s motion to revive the cases involving him, which are Crim.Case Nos. 23750 and 23751.10

On 20 March 2017, accused Aparicio posted a cash bond in theRegional Trial Court of Malaybalay City. I I Accused Marban, meanwhile,posted her cash bonds with this Court on 17 April 2017.12

On 25 April 2017, accused Marban was arraigned, where she pleadednot guilty to all the charges against her.':' Accused Aparicio also pleaded notguilty to the charges against him when he was arraigned on 8 May 2017.14

The pre-trial as to both of these accused was concluded on 20 July 2017.The prosecution manifested that it was adopting all the evidence it presentedagainst the other accused and that it was going to recall its witness, Evelyn P.Reyes, for additional examination.P Accused Marban and Aparicio also

4 In a resolution dated 18 October 2000, the Court granted the prosecution's motion to withdraw Crim. CaseNo. 23754 (see Records, Vo\. 4, pp. 135-140); in a resolution dated 29 January 2007, the motion to quash ofaccused Pacana was granted and the cases against her were dismissed (see Records, Vol. 12, pp. 9-16); in aresolution dated 4 January 2007, the Court granted the prosecution's motion to drop as accused the following:(1) Pilar T. Espina in Case Nos. 23753, 23761-63, (2) Erlina Molina in Case Nos. 23755-59, (3) Fely Asi inCase Nos. 23765-74, (4) Mercedes Mariano in Case Nos. 23758, 23775, 23777-78, (5) Anita dela Cruz inCase Nos. 23776, 23780, (6) Leticia Parcasio in Case No. 23781, and (7) Pedro de Leon in Case Nos. 23777,23779 (see Records, Vo\. 11, pp. 467-479); the Court dismissed the cases against the following deceasedaccused: (1) Benjamin Lagunilla, (2) Narciso Lumoyod, (3) Gregorio Abregana, (4) Pedro de Leon, (5)Nestor Monteci\lo, and (6) Lydia Dumas.5 Records, Vo\. 4, p. 227.6 Id., p. 226.7 Id., pp. 231-233.8 See note 3.9 Records, Vo\. 19, pp. 364-369.10 Id., p. 40 I.11 Id. p. 418-419.12 Records, Vo\. 20, p. 13.13 Id., p. 26.14 Id., p. 45.15 Order dated 20 July 2017.


manifested that they were adopting all the evidence presented by their eo-accused. 16

Thereafter, trial ensued.

EVIDENCE FOR THE PROSECUTION

The testimony of the prosecution's lone witness has been summarizedin the Court's Decision of 27 July 201617 and is incorporated by referencehereto as such testimony forms part of the prosecution's evidence againstaccused Aparicio and Marban. The witness, Evelyn P. Reyes, testifiedadditionally as follows:

She confirmed that she previously testified before the Court. In the audit that theyconducted, they conducted a re-canvass ofthe items subject of the purchases in these cases.They also compared the prices in the audited transactions with the other previoustransactions covering the same items. This is how they determined overpricing.

The overprice in the purchases subject ofCrim. Case Nos. 23751,23765,23766,23768, 23771, 23772, 23773, 23774 and 23776 was determined by comparison withprevious purchase. The overprice in the purchase in Crim. Case No. 23750, which iscovered by Disbursement Voucher No. 8908015, was determined through a re-canvass.

Under D.V. No. 8908015, which is the subject ofCrim. Case No. 23750, the itemspurchased were raincoats and rainboots. The re-canvass included Sonex Electronics (Exh."Y" is a canvass sheet for it), Goodland Enterprises (Exh. "X" is a canvass sheet for it),and Garcia Agro and Construction Supply (Exh. "CCC", which is the prosecution'sadditional exhibit, is a canvass sheet for it).

They conducted the audit a year after the transactions were audited because whatthey conducted was a special audit and they can only do this upon the directive of theChairman of the Commission. They can do so only through an office order.

When they compared the prices to previous purchases, they based their finding ofoverpricing on COA Circular No. 85-55-A, specifically that there was an excess over theten (10) percent allowable price variance. They compared to previous purchases made byDENR. They no longer went to the suppliers thereof because there is no rule or regulationrequiring them to physically check the supplier's stockroom for their ability to comply withthe required quantity. When a supplier submits a quotation, it presupposes that the quantityas stated in the canvass can be delivered.ls

In a resolution dated 27 October 2017, the Court resolved to admit theprosecution's previous exhibits, against the other accused, and its loneadditional exhibit, Exhibit "CCC", as its documentary evidence in thesepresent cases against these two accused. 19

16 Id.17 Decision dated 26 July 2016, pp. 29-36.18 She testified by way of submission of a judicial affidavit, which she duly identified. The counsels foraccused Aparicio and Marban no longer cross-examined her.19 Records, Vol. 20, p. 396.


EVIDENCE FOR THE DEFENSE

Accused Aparicio and Marban adopted all the documentary andtestimonial evidence presented and offered by their eo-accused in previoushearings. They no longer presented their own additional evidence.i"

The parties were directed to file their respective memoranda, afterreceipt of which, these cases were submitted for decision."

ISSUE

The issue in these cases is whether or not accused Aparicio arid Marbanare guilty of violating Section 3(g) of Rep. Act No. 3019 or the Anti-Graft andCorrupt Practices Act.

THE COURT'S RULING

The elements of the offense of violating section 3(g) of Rep. Act No.3019 are:

(1) that the accused is a public officer;

(2) that he entered into a contract or transaction on behalf of thegovernment; and

(3) that such contract or transaction IS grossly and manifestlydisadvantageous to the government. 22

In every criminal prosecution, the State must prove beyond reasonabledoubt all the elements of the crime charged and the complicity or participationof the accused.P The failure of the prosecution to prove all the elements ofthe offense beyond reasonable doubt leads to the accused's exoneration fromcriminal liability. 24

First element - that the accusedis a public officer

With respect to accused Aparicio, the fact that he was a public officerat the time material to the cases against him was stipulated upon and isreflected in the Pre-Trial Order dated 20 July 2017, which was signed by

20 Resolution dated 27 October 2017 (Records, Vol. 20, p. 396) cf. Pre-Trial Order dated 20 July 2017.21 Id.; Accused Aparicio and Marban filed their memoranda, while the prosecution adopts its previously filedmemoranda.22 Caunan v. People, G.R. Nos. 181999, 182001-04, & 182020-24,2 September 2009.23 People v. Maraorao, G.R. No. 174369,20 June 2012.24 Vergara v. People, G.R. No. 170180,23 November 2007.


accused Aparicio." Thus, this element, was duly admitted by accusedAparicio.

But with regard to accused Marban, there is no such stipulation of fact.More importantly, a review of the evidence presented against accused Marbanshows that the prosecution failed to prove that accused Marban was a publicofficer at the time material to the cases against her. In all the cases against her,she is alleged to have been holding the position of PBAC member. But therecords is bereft of any proof that she actually held such government position.

The testimony of the lone witness, Evelyn P. Reyes, does not touchupon any proof of accused Marban' s position. The documentary evidenceoffered also do not tend to establish accused Marban's position. AccusedMarban neither testified as to her position nor stipulated on this allegation.

There is not even circumstantial evidence from which the allegedposition may be inferred. It should be noted that even if accused Marban'sname and purported signature appear on documents signed by her eo-accusedwho were proven to be public officers, such signing by these eo-accusedcannot be imputed against accused Marban or to establish that she is a publicofficer. This is due to the observance of the res inter alios acta rule, whichmandates that the rights of a party cannot be prejudiced by an act, declarationor omission of another. 26

The Decision of 27 July 2016 disposed of the cases against eighteen(18) of the accused in all these consolidated cases. Ten of these accused wereproven to be public officers only because they testified to such fact. 27 Theeight other of these accused, who did not testify, were acquitted at the outsetafter the Court found that their respective positions were not proven"

In these present cases, considering that the prosecution also failed toprove its allegation that accused Marban was a public officer - specifically aPBAC member - at the time material to the cases against her, it thereby alsofailed to establish the first element of the offense charged against accusedMarban. This failure necessarily means that accused Marban should beacquitted of the charges against her.

Third element - that suchcontract or transaction isgrossly and manifestlydisadvantageous to thegovernment

25 Pre-Trial Order dated 20 July 2017, pp. 28 & 30.26 Rules 130, sec. 28 of the Rules of Court.27 Decision of27 July 2016, p. 54.28 Id.

rilt

DECISIONPeople vs. Batutay, et al.Crim. Case Nos. 23750-51; 23765-66; 23768; 23771-72; 23774; 23776Page II of 17

In the Court's Decision of 27 July 2016, this Court proceeded toexamine the third element ahead of the second element, which will also bedone in these cases against these accused. This is due to the fact that all ofthese cases allege overpricing, which is embedded in the third element ofviolation of section 3(g) of Rep. Act No 3019,29and criminal liability for theoffense charged arises if overpricing is proven. Proof of overpricing wouldlay the basis for saying that the contracts or transactions are grossly andmanifestly disadvantageous to the government.

In these present cases, since the personal circumstances of hereinaccused Aparicio do not affect the ascertainment of the overpricing, theanalyses in the previous Decision are applicable to these cases against accusedAparicio. The extent of the findings of fact and conclusions of law reached inthe previous Decision will only have to be considered in light of the additionalevidence presented by the prosecution against accused Aparicio.

To recall, the Court ascertained whether there were overpricing byreviewing the COA methodology and COA's own circular on determiningoverpricing. The Decision reads in part:

To prove overprice, it is necessary to present evidence of the actualprice of the particular item purchased by the accused at the time of theaudited transactions or, at the least, an approximation thereof. In this case,however, this Court sees no need to belabor this matter as there is no properre-canvass to begin with.

A perusal of the COA's re-canvass documents reveals that pricequotations were obtained from four suppliers, namely:

Supplies Unit PricesUnit Quantity Description Goodland Sonex North Guibards

EastPes. 200 Working gloves, made of Not P45

leather available" 200,000 Polythelene bags PI15

4x6x.002, black" 500,000 Polythelene bags PI20

4x6x.002, black(perforated)

" 300,000 Polythelene bags PI554x6x.003, black(perforated)

" 300,000 Polythelene bags PAUR5x6x.003, black(perforated)

Bags 50 Sagama fertilizer PI95Pes. 100,000 Polythelene bags 6x8, P130/

black thousandcans 4 Sprinkiling cans (2gals)Bots. 50 ROMEX Chemical soil NONE

conditionerPcs. 50 Rainboots (Japan) 6, PAUR PI95

Sapporo" 25 Knapsack, oxford mat PAUR

29 Id., citing Caunan v. People, supra.


" 50 Rainboots black, PAUR (Spartkneelength, Hayama an)

P195Rolls 25 Sarlon Cloth PAURPcs. 25 Sleeping bags w/ built-in P520

caase & padded shoulderstrap

" 50 Skull protector/Safety NONE PIIOcap

" 25 Raincoats w/ hood PAUR (Here(Kneelength) Heranles, ules)made in RP PI20

" 25 Water canteen w/ case & PAURbelt

" 50 Seedling carriers w/ PAURpadded shoulder strap &aluminum box

" 10 Working vest" 10 Jungle Cabin (tent) NONE

IOx8x8 ft w/ window &built-in case

sets 10 Medical kit with belt NONEbots. 20 Ana-a Solution P45rolls 10 Sarlon cloth lA x 45 m PAUR

(Sephiaco)Pes. 10 Backpack w/ aluminum PAUR

frame" 5 Portable soil PH tester PAUR" 5 Budding knife (Swiss) NONE" 5 Pruning Shear NONE

Case I Furadan 1,000 ml." I Maneb/Dithane 1,000 ml. P1581l95

Pes. 5 Fire mask goggles P297 P395" 5 Fire mask cartridge PI72 P200" 5 Fire mask strap P97 P350" 5 Fire Extinguisher 20 Ibs. P85/P P30

med (refill and parts) 95

Under COA Circular No. 85-55-A, overprice of an audited purchaseis pegged on the price of the same item per canvass of the auditor. In turn,canvass of prices must be from at least three (3) bonafide reputablesuppliers, thus:

3.3( I) Price - The price is excessive if it is more than the 10%allowable price variance between the price paid for the item bought and the priceof the same item per canvass of the auditor.

xxx

4.1 (b )(3) In an emergency purchase, canvass of prices of itemsfrom at least three (3) bonafide reputable suppliers shall be required, except whenthe amount involved is less than PI ,000.00 or in case of repeat orders where theprice is the same or less than the original price. [emphases supplied]

While price quotations were gathered by the COA from foursuppliers during their re-canvass of the above supplies, these were not forthe same items. Price quotations were sought from Goodland and Sonexfor a set of items, and from North East and Guibards for another. Simplyput, no three suppliers provided their price quotations for any single itemre-canvassed.

DECISIONPeople vs. Batutay, et al.Crim. Case Nos. 23750-5\; 23765-66; 23768; 23771-72; 23774; 23776Page 13 of 17

Excepting the fire mask goggles, cartridges and straps, where twosuppliers gave their price quotations, the COA's finding of overpricing wasbased on the price quotation of only one supplier. Clearly, this falls shortof the requisite three suppliers necessary for a valid canvass, and cannotgive rise to a reliable basis to indicate overpricing."

Before a contract or transaction may be considered "gross" or"manifestly disadvantageous" to the government, there should be somestandard against which it must be measured or assessed." The manner ofascertaining overpricing under COA Circular No. 85-55-A is consistent withthis required standard for determining what may be grossly and manifestlydisadvantageous to the government. Compliance with the requirements of theCOA circular would establish a standard in prices upon which the matter ofoverpricing may be gauged."

Witness Evelyn Reyes testified that COA's finding of overpricing wasbased on: (1) re-canvass of the prices of some of the items procured, and (2)comparison of the prices of seeds and supplies to those under otherreforestation projects.P Both of these methods of arriving at overpricing, asactually carried out by COA, were found to be non-compliant with theprovisions of COA Circular No. 85-55-A.

To establish overpricing, this circular requires a canvass by the auditorfrom at least three (3) bona fide reputable suppliers." The Court found thatthe re-canvass conducted by COA did not comply with this circular. WhileCOA solicited price quotations from a total of four (4) suppliers, a close lookat the quotations reveal that no three (3) suppliers provided price quotationsfor any particular item subject of the re-canvass."

In her additional testimony, the witness reiterated that the COAconducted re-canvass and price comparisons to determine overpricing. Shealso identified that as regards the subject matter of Crim. Case No. 23750, are-canvass was conducted. The witness pointed out and identified anadditional document which was eventually offered as an additional exhibit,Exh. "CCC", for the prosecution.

The witness's appreciation of this document was that it was anadditional quotation for the subject matter of Crim. Case No. 23750, whichshe identifies as concerning the procurement of raincoats and rainboots. Thisis based on the Disbursement Voucher number 8908015,36 which is identifiedin the Information of the case.

30 Footnotes omitted. The entries in the table that are in boldface were the items that COA found to beoverpriced.31 Id., pp. 58-59, citing CrucilIo v. Office of the Ombudsman, G.R. Nos. 159876 & 159877,26 June 2007.32 Id., p. 59 .

. 33 Id., p. 55.34 Id., p. 57.35 Id.36 Exh. "K".


She opines that the requirement that there should be at least three (3)supplier quotes to properly assess overpricing has been satisfied, as sheidentified the three suppliers who supposedly quoted prices for the itemsprocured in Crim. Case No. 23750.

Evidently, the recalling of the witness was for her to identify Exh."CCC", which the prosecution views as proof that the re-canvass made wascompliant with the three-supplier requirement in COA Circular No. 85-55-A.

However, a reading of the Amended Information in Crim. Case No.23750 and the content ofExh. "CCC" shows that the latter does not supportthe allegations contained in the former. The witness's opinion that the caseconcerns the procurement of raincoats and rainboots is misplaced andirrelevant since the Information of this particular case clearly identifies theitem alleged to have been procured was "seeds." It does not matter what itemsare listed as procured in the identified disbursement voucher. Theprosecution's duty is to prove the allegations contained in the Information.

The listing of the price quotations in Exh. "CCC" does not show anyitem for "seeds." This document, therefore, does not have any probative valueas regards establishing the allegations in Crim. Case No. 23750. It cannot beconsidered as an additional source of prices for purposes of completing thethree-supplier minimum canvass requirement.

In fact, this document does not tend to validate the finding ofoverpricing. The witness revealed that their method of proving the overpricingin the procurement of seeds is by the second one she explained, whichinvolves a comparison of the procured seeds with those procured in othersimilar projects." But this method of establishing overpricing was also foundto be non-compliant with COA Circular No. 85-55-A.38 A mere comparisonof prices of procured items in the two different projects will not sufficebecause a canvass is required by COA Circular No. 85-55-A.39

Notwithstanding price variance in the items procured in Crim. Case No.23750, and in all other cases, with the items procured in other reforestationprojects, such price variance cannot be legally considered overpricing if therequirements of COA Circular No. 85-55-A are not complied with,specifically the proper conduct of a canvass.

The Court noted that there appears to be no public bidding in theprocurement of the items alleged to be overpriced. But this alone will notestablish gross and manifest disadvantage.t?

37 Decision of27 July 2016, pp. 31-32, notes 77-84.38 Id., p. 65.39 Id., p. 63.40 Id.

DECISIONPeople vs. Batutay, et at.Crim. Case Nos. 23750-5\; 23765-66; 23768; 23771-72; 23774; 23776Page \5 of 17

After due consideration of the additional evidence presented by theprosecution, the Court rules that these evidence do not have any impact on theCourt's previous finding that the methods employed by COA to establishoverpricing were invalid. This finding is adopted herein, which results also tothe finding that no overpricing was proven.

The foregoing discussion is likewise applicable to accused Aparicio'sother case, Crim. Case No. 23751, which also concerns the procurement of"seeds." Moreover, the witness unequivocally said, in her additionaltestimony, that overpricing in Crim. Case No. 23751 was determined bycomparison with previous purchase. This method was also found to be non-compliant with COA Circular No. 85-55-A, as it dispensed with the requiredproper canvass. Since the COA method to establish overpricing in this case isalso invalid, it also follows that no overpricing was proven.

Without proof of the alleged overpricing, the contracts or transactionssubject of the criminal cases cannot be deemed grossly and manifestlydisadvantageous to the government. The third element of the offense chargedwas thus not duly established.

Considering that the prosecution failed to prove the first element of theoffense insofar as accused Marban is concerned, it is no longer necessary toexamine the third element of the offense in the cases against her.

But even if accused Marban was proven to be a public officer, anexamination of the third element in the offense charged against her shows thatthe allegation of overpricing was also unproven. In the witness's additionaltestimony, she categorically said that in all the cases involving accusedMarban, overpricing was determined by comparison of the prices withprevious purchases in other projects. As discussed above, this method wasfound invalid as it does not comply with the requirement of a proper canvass.The witness essentially admitted that no canvass was made with respect to thecases involving accused Marban, which canvass is required under COACircular No. 85-55-A. This is the same finding with request to Crim. Case No.23751 against accused Aparicio. Non-compliance with the circular means thatno overpricing can be proven. This consequently means that the third elementof the offense was not established.

The second element of the offense charged against these two accusedalso no longer needs to be examined, in view of prosecution's failure to provethe first element and third element in the cases against accused Marban andthe third element in the cases against accused Aparicio.

Thus, for failure of the prosecution to prove all the elements of theoffense charged in Crim. Case Nos. 23750 and 23751, accused Aparicio mustbe acquitted of all the charges in these cases. Accused Marban must also beacquitted of all the charges against her in Crim. Case Nos. 23765, 23766,


23768, 23771, 23772, 23774, and 23776, for failure of the prosecution toprove every element of the offense charged.

WHEREFORE, for failure of the prosecution to prove their guiltbeyond reasonable doubt, accused Norberto Aparicio and CarmelitaMarban are hereby ACQUITTED of all the charges against them in thesecases.

The bonds posted by the accused are CANCELLED and RELEASEDto them, subject to the usual accounting rules and regulations. The HoldDeparture Orders against them are likewise CANCELLED.

SO ORDERED.

~~AGOSAssociate Justice

Chairperson

WE CONCUR:

MARY AN. CORPUS-~NALAC

Ass ciate Justice


ATTESTATION

I attest that the conclusions in the above Decision were reached inconsultation before the case was assigned to the writer of the opinion of theCourt's Division.

.d~LAGOSChairperson, Fifth Division

CERTIFICATION

Pursuant to article VIII, section 13 of the Constitution, and the DivisionChairperson's Attestation, it is certified that the conclusions in the aboveDecision were reached in consultation before the case was assigned to thewriter of the opinion of the Court's Division.

I;

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