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Sulapas Report - Art. 219220221222 2
Sulapas Report - Art. 219220221222 2
ELEMENTS
COMMENTS/ANNOTATIONS
Art. Illegal use of public funds or property. — Any public officer who shall
apply any public funds or property under his administration to any public
use other than 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 value 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.
If no damage or embarrassment to the public service has resulted, the
penalty shall be a fine from 5 to 50 percent of the sum misapplied.
Art. 220 – Illegal use of Public Funds or Property
ELEMENTS
COMMENTS/ANNOTATIONS
Figure 1: Codal analysis of Art. 220 in relation to presence of damages or embarrassment to public
service and the consequent penalties.
Art. 220 – Illegal use of Public Funds or Property
COMMENTS/ANNOTATIONS
• Issue: W/N mayor Atienza was guilty of violating Art. 220 of the RPC
• Held: No.
• Ratio: 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.
Art. 220 – Illegal use of Public Funds or Property
COMMENTS/ANNOTATIONS
• RATIO:
Dura lex sed lex. Ysidoro’s act, no matter how noble or miniscule the amount diverted,
constitutes the crime of technical malversation. The law and this Court, however, recognize that his
offense is not grave, warranting a mere fine.
SEC. 336., LGC Use of Appropriated Funds and Savings. – Funds shall be available exclusively
for the specific purpose for which they have been appropriated. No ordinance shall be passed
authorizing any transfer of appropriations from one item to another. However, the local chief executive
or the presiding officer of the sanggunian concerned may, by ordinance, be authorized to augment any
item in the approved annual budget for their respective offices from savings in other items within the
same expense class of their respective appropriations.
Art. 220 – Illegal use of Public Funds or Property
COMMENTS/ANNOTATIONS
V. Technical Malversation distinguished from Malversation in Art
217. (Reyes, RPC Annotated, 21st Ed., pp. 551)
Points of Distinction Technical Malversation (Art. 220) Malversation (Art. 217)
Offender GR: Public Officers; XPN by operation of Art. GR: Public Officers; XPN by operation of Art.
222 222
Presence of Personal Gain Offender does not derive personal gain or Offender in certain cases profits from the
profit proceeds of the crime
Application of Public Funds Public fund/property is allocated to another Public fund/property is allocated to the
public use in contravention of a law or personal use and benefit of the offender or
ordinance of another person
Defense of Good Faith Good faith or lack of criminal intent is Good faith or lack of criminal intent is a
immaterial (Ysidoro v. PP, GR. No. 192330) defense in malversation not committed
through negligence (PP v. Elvina, 24 Phil. 230)
Figure 2: Points of distinction of Art. 217 from Art. 220 citing Reyes Criminal Law II Annotation
Art. 220 – Illegal use of Public Funds or Property
COMMENTS/ANNOTATIONS
VI. Technical Malversation is NOT included nor does it necessarily
include the crime of malversation of public funds. (Reyes, RPC Annotated, 21st
Ed., pp. 551)
Malversation (Art. 217) Technical Malversation (Art. 2220)
Offender misappropriates the funds Public officer applies public funds under
for his personal use or allows any his administration not for his personal use
Punishable Act/s other person to take such public but to a public use other than for which
funds for latter’s personal use the fund was appropriated by law or
ordinance.
Figure 3: Additional points of distinction of Art. 217 from Art. 220 citing Parungao v. Sandiganbayan, GR
No. 96025, May 15, 1991
Art. 220 – Illegal use of Public Funds or Property
COMMENTS/ANNOTATIONS
VII. Malversation of Public Funds does not include the crime of
Illegal Use of Public Funds (Technical Malversation). (Parungao v.
Sandiganbayan and People of the Phils., GR NO. 96025, May 15, 1991
FACTS:
The petitioner, a former municipal treasurer of Porac, Pampanga, was charged with malversation of public
funds allegedly committed as follows:
That on or about the month of September, 1980, or sometime subsequent thereto, in the Municipality of
Porac, Province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, OSCAR
PARUNGAO, Municipal Treasurer of Porac, Pampanga, hence a public officer having been appointed and
qualified as such, having custody or control of and accountable for the public funds collected and received
by him by reason of the duties of his office, did then and there wilfully, unlawfully, feloniously and with
abuse of confidence, take, appropriate and convert to his own personal use and benefit the amount of
ONE HUNDRED EIGHTY-FIVE THOUSAND TWO HUNDRED FIFTY PESOS (P185,250.00), Philippine
Currency, to the damage and prejudice of the government in the said amount.
Prosecution Witness:
CRBI funds are released to the provincial treasurer and withdrawn by the municipal treasurer
of the municipality where a project is to be implemented. With regard to the CRBI fund for
Barangay Jalung, their office, through Engr. Anselmo Fajardo, conferred with the barangay
captain on what project the barangay wanted to undertake. It was agreed that the fund be
utilizied for concreting the barangay Jalung road.
FACTS:
Parungao’s Defense:
1. P126,095.59 was disbursed for materials delivered by the contractor under Voucher Numbers 41-80-12-
440 and 41-80-12-441 for P86,582.50 and P39,513.09 respectively.
2. P59,154.41 was used to pay, upon the insistence of the then Porac Mayor Ceferino Lumanlan, the labor
payrolls of the different barangays in the municipality.
SANDIGANBAYAN’S DECISION
(1) NOT GUILTY OF ART. 217 Malversation of Public Funds – (a) the accused certified that his money,
property and accountable forms as Municipal Treasurer of Porac, Pampanga for the period from February
6,1980 to December 31, 1980, have been audited and found correct; (b) accused Parungao had submitted
disbursement vouchers and supporting documents from the CRBI barangay Jalung fund to the Provincial
Auditor's Office which were audited and found in order by Auditor Quibote, and the acknowledgments of
Emerenciana Tiongco and auditing examiner Jose Valencia that the disbursements of P86,582.50 and
P39,513.09 under vouchers 4180-12-440 and 4180-12-441 were duly entered in accused Parungao's
Treasurer's Journal of Cash Disbursements and Cashbook
FACTS:
SANDIGANBAYAN’S DECISION
RULING:
CRBI fund is a general fund, and the utilization of this fund specifically for the concreting of the Barangay
Jalung Road was merely an internal arrangement between the Department of Public Works and
Highways and the barangay captain and was not particularly provided for by law or ordinance.
There is no dispute that the money was spent for a public purpose—payment of the wages of laborers
working on various projects in the municipality. It is pertinent to note the high priority which laborers' wages
enjoy as claims against the employers' funds and resources. In the absence of a law or ordinance
appropriating the CRBI fund for the concreting of the Barangay Jalung Road, the petitioner cannot
be declared guilty of the crime of illegal use of public funds.
Art. 221 – Failure to make delivery of public funds or property
Article 221. Failure to make delivery of public funds or property. - Any public officer
under obligation to make payment from Government funds in his possession, who shall fail
to make such payment, shall be punished by arresto mayor and a fine from 5 to 25 per
cent of the sum which he failed to pay.
This provision shall apply to any public officer who, being ordered by competent authority to
deliver any property in his custody or under his administration, shall refuse to make such
delivery.
The fine shall be graduated in such case by the value of the thing, provided that it shall not
less than Ten Thousand (P10,000) pesos. (As amended by RA No. 10951)
Art. 221 – Failure to make delivery of public funds or property
PUNISHABLE ACTS:
(Reyes, RPC Annotated, 21st Ed., pp. 552)
CONSOLIDATED ELEMENTS:
(UP Criminal Law II Bar Ops, 2008)
1. Private individuals who, in any capacity whatever, have charge of any national,
provincial or municipal funds, revenue, or property;
COMMENTS/ANNOTATIONS:
(Reyes, RPC Annotated, 21st Ed., pp. 553-555)
1. “Even if such property belongs to private individual” is a sweeping and all embracing
statement so as to include a case where private funds or property are involved, as long as
such funds or property are placed in the custody of accountable officers. (People v. Dela
Cerna, CA, 40 OG., Supp.12,159);
Art. 222 – Officers included in the preceding sections
COMMENTS/ANNOTATIONS:
(Reyes, RPC Annotated, 21st Ed., pp. 553-555)
COMMENTS/ANNOTATIONS:
(Reyes, RPC Annotated, 21st Ed., pp. 553-555)
COMMENTS/ANNOTATIONS:
(Reyes, RPC Annotated, 21st Ed., pp. 553-555)
VI. PRIVATE INDIVIDUAL FOR PURPOSES OF ART. 222 IS NOT DEEMED A PUBLIC
OFFICER.
Art. 222 – Officers included in the preceding sections
COMMENTS/ANNOTATIONS:
(Reyes, RPC Annotated, 21st Ed., pp. 553-555)
From the foregoing discussion, it is evident that the petitioner did not cease to be a
private individual when he agreed to act as depositary of the garnished dump truck.
Therefore, when the information charged him and Jaime Ancla before the Sandiganbayan
for malversation of public funds or property, the prosecution was in fact charging two
private individuals without any public officer being similarly charged as a co-
conspirator. Consequently, the Sandiganbayan had no jurisdiction over the controversy
and therefore all the proceedings taken below as well as the Decision rendered by
Respondent Sandiganbayan, are null and void for lack of jurisdiction. (Azarcon v.
Sandiganbayan, GR. No. 116033, February 26, 1997);
Art. 222 – Officers included in the preceding sections
COMMENTS/ANNOTATIONS:
(Reyes, RPC Annotated, 21st Ed., pp. 553-555)
COMMENTS/ANNOTATIONS:
(Reyes, RPC Annotated, 21st Ed., pp. 553-555)
HELD: If the acts of which the accused is charged constitute any crime whatever it would
be that of malversation of property attached by judicial order — the crime defined and
punished in article 395 in connection with articles 390 and 392 of the Penal Code. The act
could not be regarded as constituting estafa under paragraph 5 of article 535 of the Code,
because the property alleged to have been misapplied was not the subject of a mere private
bailment but of a judicial deposit. This gives the depositary a character equivalent to that of
a public official, and a breach of his obligation is similar to the violation of the obligations
imposed by public office.
Art. 222 – Officers included in the preceding sections
COMMENTS/ANNOTATIONS:
(Reyes, RPC Annotated, 21st Ed., pp. 553-555)
HELD: However, as the accused, Rastrollo, in selling the said hose, acted with the
knowledge and consent of the attorney for his creditor, since it is proved that the said
attorney agreed with the depositary that the proceeds of the sale should be delivered to
him, and inasmuch as there is no proof, on the other hand, that the depositary, Rastrollo,
appropriated or applied the proceeds of the sale of the hose to his own use or that of others,
but has deposited the same in court, although somewhat tardily, it is evident that the
defendant has contracted no criminal liability. His act does not include all of the elements
which constitute the crime of malversation, or of any other crime, and the irregularity noted
in his conduct is chargeable to the attorney for the creditor who might have been prejudiced
thereby.