FIRST DIVISION

[G.R. No. 185960. January 25, 2012.]

MARINO B. ICDANG, petitioner, vs. SANDIGANBAYAN (Second Division) and PEOPLE OF
THE PHILIPPINES, respondents.
DECISION
VILLARAMA, JR., J p:
Before us is a petition for certiorari under Rule 65 seeking to reverse and set aside the Decision 1 dated
May 26, 2008 and Resolution 2 dated November 18, 2008 of the Sandiganbayan (SB) (Second Division) which
convicted petitioner of the crime of malversation of public funds.
The factual antecedents:
Petitioner Marino B. Icdang, at the time of the transactions subject of this controversy, was the Regional
Director of the Office for Southern Cultural Communities (OSCC) Region XII in Cotabato City.
On January 19, 1998, a Special Audit Team was formed by the Commission on Audit (COA) Regional
Office XII, Cotabato City pursuant to COA Regional Office Order No. 98-10 3 to conduct comprehensive audit on
the 1996 funds for livelihood projects of the OSCC-Region XII. Hadji Rashid A. Mudag was designated as team
leader, with Jose Mercado, Myrla Fermin and Evelyn Macala as members.
In its report submitted to the COA Regional Director, the audit team noted that petitioner was granted
cash advances which remained unliquidated. In the cash examination conducted by the team on March 10, 1998,
it was discovered that petitioner had a shortage of P219,392.75. Out of the total amount of P920,933.00 released
in September 1996 to their office under sub-allotment advice No. COT-043, to cover the implementation of
various socio-economic projects for the cultural communities of the region, cash advances amounting to
P407,000.00 were granted from October 1, 1996 to February 5, 1997 to officials and employees including
petitioner. Per records, it was noted that P297,392.75 of these cash advances remained unliquidated as of
December 31, 1997. 4 CEDHTa
Petitioner never denied that he received a total of P196,000.00 evidenced by disbursement vouchers
and checks payable to him, as follows:
DV

Check

No.

No.

0988

893433

Date

10/01/96

Purpose

Amount

Initial funding for the

P50,000.00

Ancestral Domain
Development Program
0989

893432

10/01/96

Establishment of ICC-

50,000.00

IAD
1150

916539

11/05/96

Support to Cooperative

6,000.00

0987

893429

10/01/96

Adult Literacy Program

60,000.00

0986

893430

10/01/96

Child Care Development

30,000.00 5

Program
In addition, per the Schedule of Cash Advance Intended for Livelihood Projects, 6 the following amounts
were also for petitioner's account: DTIACH
Check No.

Date

Purpose

Amount

xxx xxx xxx

893633

11/15/96

Operationalization of Tribal

11,000.00

Cooperative
893768

12/13/96

Fishpen Development

10,000.00

Program
893788

12/20/96

Operationalization of

5,000.00

Tribal Cooperative
916634

02/05/97

Ancestral Domain

10,000.00

Development Program
[TOTAL CASH ADVANCES P]232,000.00
In the Audit Observation Memorandum No. 97-001 (March 18, 1998) sent by the COA Region XII to the
OSCC-Region XII reflecting the findings of the Special Audit Team, it was also disclosed that: (1) Funds intended
for programs for Ancestral Domain Claim Development and to support tribal cooperatives, were cash advanced,
but the proposed projects were not implemented by the OSCC-Region XII; (2) No official cashbooks are
maintained to record cash advances and disbursements from the 1996 funds allocated for livelihood projects;
and (3) Out of the total P920,933.00 allocated for 1996 livelihood projects, the amount of P445,892.80 was
disbursed leaving a balance of P475,040.20; however, final trial balance as of December 31, 1996 showed that
the office has exhausted the allocated funds for the whole year; the utilization of the P475,040.20 could not be
explained by the Accountant so that it may be concluded that such was misappropriated. Petitioner indicated his
comments on the said memorandum by requesting for extension to restitute the amount of P306,412.75 (which
included the P67,000.00 cash shortage of another OSCC-Region XII official, Ma. Teresa A. Somorostro), and
explaining that the P475,040.20 was not misappropriated as evidenced by their own financial report and restatement of allotment and obligation for the month ending December 31, 1996. 7
From the field interviews conducted by the audit team, it was also gathered that the intended projects
covered by the cash advances were never implemented, such as the proposed Children Development Project in
Bgy. Matila; adult literacy program in Cotabato; operationalization of tribal cooperative in Bgy. Bantagan, Sultan
Kudarat; and establishment of ICC-IAD in Magpet, Cotabato where a complaint was made to the effect that the
OSCC-Region XII office allegedly upon receipt of funds prepares a project for implementation which is different
from that project proposal submitted by the project officer. Supposedly, there was likewise no support or
assistance given by the OSCC-Region XII to the activities of the Provincial Special Task Force on Ancestral
Domain for the indigenous people of Columbio, Sultan Kudarat, and to Bgys. Salumping, Municipality of
Esperanza, President Roxas, and Matrilala. 8 And as already mentioned, the audit team discovered that the
accountable officers of OSCC-Region XII failed to maintain the official cashbook so that there were no recording
of transactions whenever a cash advance was granted; only subsidiary ledgers were used by the accounting
section. DHacTC
From the P232,000.00 accountabilities of petitioner, the COA deducted the following: P10,000.00
covered by acknowledgment receipt by A. Anas; various cash invoices in the amount of P2,197.25; and
Reimbursement Expense Receipts (RERs) in the amount of P410.00. After the cash examination, petitioner was
still found short of P219,392.75. 9 Consequently, a demand letter was sent by the COA for petitioner to
immediately produce the missing funds. In his letter-reply dated March 19, 1998, petitioner requested for oneweek extension to comply with the directive. 10
However, the one-week period lapsed without compliance having been made by petitioner. Hence, the
audit team recommended the initiation of administrative and criminal charges against him, as well as Ms.
Somorostro, Chief of the Socio-Cultural Development Concerns Division of OSCC-Region XII.

On September 21, 2000, the Office of the Ombudsman found probable cause against petitioner and Ms.
Somorostro for violation of Art. 217 of the Revised Penal Code, as amended, and Section 3 (e) of Republic Act
No. 3019 (Anti-Graft and Corrupt Practices Act).
The Amended Information charging petitioner with the crime of Malversation of Public Funds (Criminal
Case No. 26327) reads:
That during the period from October 1996 to February 1997 in Cotabato City, Philippines and
within the jurisdiction of this Honorable Court, accused Marino B. Icdang, a public officer being
then the Regional Director of the Office for Southern Communities (OSCC), Region XII, Cotabato
City and as such is accountable officer for the public fund received by him that were intended for
the socio-economic and cultural development projects of the OSCC Region XII, did then and
there willfully, unlawfully and feloniously take[,] misappropriate, embezzle and convert for his own
personal use and benefit from the said fund the aggregate amount of TWO HUNDRED
NINETEEN THOUSAND THREE HUNDRED NINETY-TWO PESOS AND 75/100 (P219,392.75)
to the damage and prejudice of the government in the aforesaid sum.
CONTRARY TO LAW. 11
Petitioner was likewise charged with violation of Section 3 (e) of R.A. No. 3019 (Criminal Case No.
26328). DEHaTC
The lone witness for the prosecution was Hadji Rashid A. Mudag, State Auditor IV of COA Region XII.
He presented vouchers which they were able to gather during the cash examination conducted on March 10,
1998, which showed cash advances granted to petitioner, and in addition other cash advances also received by
petitioner for which he remained accountable, duly certified by the Accountant of OSCC-Region XII. Petitioner
was notified of the cash shortage through the Audit Observation Memorandum No. 97-001 dated March 18, 1998
and was sent a demand letter after failing to account for the missing funds totalling P219,392.75. 12
On cross-examination, witness Mudag admitted that while they secured written and signed certifications
from project officers and other individuals during the field interviews, these were not made under oath. The
reports from Sultan Kudarat were just submitted to him by his team members as he was not present during the
actual interviews; he had gone only to Kidapawan, Cotabato and only prepared the audit report. He also admitted
that they no longer visited the project sites after being told by the project officers that there was nothing to be
inspected because no project was implemented. 13
On May 26, 2008, the SB's Second Division rendered its decision convicting petitioner of malversation
and acquitting him from violation of Section 3 (e) of R.A. No. 3019. The dispositive portion reads:
WHEREFORE, premises considered judgment is hereby rendered finding accused MARINO
B. ICDANG Guilty beyond reasonable doubt of Malversation of Public Funds or Property in
Criminal Case No. 26327 and finding in his favor the mitigating circumstance of voluntary
surrender, is hereby sentenced to an indeterminate penalty of, considering the amount involved,
TEN (10) YEARS and ONE (1) DAY of PRISION MAYOR as minimum to EIGHTEEN (18)
YEARS, EIGHT (8) MONTHS and ONE (1) DAY of Reclusion Temporal as maximum, to suffer
the penalty of perpetual special disqualification, and to pay a fine of P196,000.00 without
subsidiary imprisonment in case of insolvency.
He is also ordered to reimburse the government of the said amount.
In Criminal Case No. 26328, he is hereby ACQUITTED on the basis of reasonable
doubt. IEHSDA
With cost against accused.
SO ORDERED. 14
The SB ruled that the prosecution has established the guilt of petitioner beyond reasonable doubt for the
crime of malversation of public funds, the presumption from his failure to account for the cash shortage in the
amount of P232,000.00 remains unrebutted. As to the reasons given by petitioner for non-compliance with the
COA demand, the SB held:
A careful perusal of Mr. Icdang's Letter-Answer dated 19 March 1998 (Exh. "J") to the demand
letter and directive issued by the COA clearly shows he was just asking for extension of time to

comply with the demand letter. There was virtually no denial on his part that he received the
P232,000.00 amount earmarked for the various government projects. His reasons were first, the
committee tasked to prepare the liquidation of the cash advances are still in the process of
collecting all the documents pertinent to the disbursement of the project funds; and second, the
payees to the disbursements were still to be notified so that they will have to come to the office to
affix their signatures as payees to the liquidation vouchers. EDISaA
This response is queer because as he gave the money to the supposed payees, he should have
kept a ledger to keep track of the same, considering that these are public funds. More
importantly, Mr. Icdang was given ample opportunity to dispute the COA findings that there was
indeed a shortage. Instead of doing so, Mr. Icdangnever presented the promised proof of his
innocence before this Court during the trial of this case. Thus, the prima facie presumption under
Article 217 of the Revised Penal Code, that the failure of a public officer to have duly forthcoming
the public funds with which he is chargeable, upon demand, shall be evidence that he put the
missing funds for personal uses, arises because first, there was no issue as to the accuracy,
correctness and regularity of the audit findings and second, the funds are missing. 15
Petitioner filed a motion for reconsideration requesting that he be given another chance to present his
evidence, stating that his inability to attend the trial were due to financial constraints such that even when some
of the scheduled hearings were sometimes held in Davao City and Cebu City, he still failed to attend the same.
However, the SB denied the motion noting that the decision has become final and executory on June 10, 2008 for
failure of petitioner to file a motion for reconsideration, or new trial, or appeal before that date.
Hence, this petition anchored on the following grounds:
I. THE HONORABLE SANDIGANBAYAN COMMITTED GRAVE ABUSE OF DISCRETION
TANTAMOUNT TO LACK OR EXCESS OF JURISDICTION WHEN IT RENDERED ITS
JUDGMENT OF CONVICTION AGAINST PETITIONER DESPITE ITS KNOWLEDGE THAT
PETITIONER WAS NOT ABLE TO ADDUCE HIS EVIDENCE DUE TO VARIOUS
CIRCUMSTANCES, THAT HE WAS NOT ASSISTED BY COUNSEL DURING THE
PROMULGATION OF JUDGMENT; THE GROSS AND RECKLESS NEGLIGENCE OF HIS
FORMER COUNSEL IN FAILING TO ASSIST HIM DURING THE PROMULGATION; HIS
FINANCIAL AND ECONOMIC DISLOCATION WHICH MADE HIM UNABLE TO ATTEND THE
SCHEDULED TRIALS IN MANILA, DAVAO CITY AND CEBU CITY, HIS RESIDENCE BEING IN
COTABATO, WHICH ALL CONSTITUTE A DENIAL OF HIS RIGHT TO BE HEARD AND TO
DUE PROCESS.
II. PETITIONER WAS LIKEWISE CLEARLY DENIED OF HIS RIGHT TO DUE PROCESS WHEN
DUE TO THE RECKLESS AND GROSS NEGLIGENCE OF HIS FORMER COUNSEL, THE
LATTER FAILED TO FILE A MOTION FOR NEW TRIAL TO REVERSE THE JUDGMENT OF
CONVICTION BEFORE THE SANDIGANBAYAN OR TO FILE AN APPEAL TO THE SUPREME
COURT FROM THE ADVERSE JUDGMENT OF CONVICTION.
III. IT IS HIGHLY UNJUST, INEQUITABLE AND UNCONSCIONABLE FOR PETITIONER TO BE
PRESENTLY LANGUISHING IN JAIL WITHOUT HIS DEFENSE AGAINST THE CRIME
CHARGED HAVING BEEN PRESENTED BEFORE THE HONORABLE SANDIGANBAYAN AND
APPRECIATED BY THE SAID COURT, AND BY THIS HONORABLE SUPREME COURT IN
CASE OF APPEAL FROM AN ADVERSE DECISION.
IV. REMAND OF THE INSTANT CASE TO THE COURT OF ORIGIN, OR TO THE HONORABLE
SANDIGANBAYAN SO THAT PETITIONER CAN PRESENT HIS EVIDENCE BEFORE SAID
COURT, ASSISTED BY NEW COUNSEL, IS PROPER AND JUSTIFIED, ESPECIALLY
CONSIDERING THAT THE INSTANT CASE INVOLVES A CRIME OF ALLEGED
MALVERSATION OF PUBLIC FUNDS WHICH HE NEVER COMMITTED, AND INVOLVES A
HIGHER PENALTY OR TERM OF IMPRISONMENT. 16
The petition must fail.

At the outset it must be emphasized that the special civil action of certiorari is not the proper remedy to
challenge a judgment conviction rendered by the SB. Petitioner should have filed a petition for review
on certiorari under Rule 45.
Pursuant to Section 7 of Presidential Decree No. 1606, 17 as amended by Republic Act No. 8249,
decisions and final orders of the Sandiganbayan shall be appealable to the Supreme Court by petition for review
on certiorari raising pure questions of law in accordance with Rule 45 of the Rules of Court. Section 1 of Rule 45
of the Rules of Court provides that "[a] party desiring to appeal by certiorari from a judgment, final order or
resolution of the . . . Sandiganbayan . . . whenever authorized by law, may file with the Supreme Court a verified
petition for review on certiorari. The petition . . . shall raise only questions of law, which must be distinctly set
forth." Section 2 of Rule 45 likewise provides that the petition should be filed within the fifteen-day period from
notice of the judgment or final order or resolution, or of the denial of petitioner's motion for reconsideration filed in
due time after notice of judgment. TaCDAH
As observed by the SB, the 15-day period of appeal, counted from the date of the promulgation of its
decision on May 26, 2008, lapsed on June 10, 2008, which rendered the same final and executory. Petitioners
motion for reconsideration was thus filed 6 days late. Petitioner's resort to the present special civil action after
failing to appeal within the fifteen-day reglementary period, cannot be done. The special civil action
of certiorari cannot be used as a substitute for an appeal which the petitioner already lost. 18
This Court has often enough reminded members of the bench and bar that a special civil action
for certiorari under Rule 65 lies only when there is no appeal nor plain, speedy and adequate remedy in the
ordinary course of law. Certiorari is not allowed when a party to a case fails to appeal a judgment or final order
despite the availability of that remedy. The remedies of appeal and certiorari are mutually exclusive and not
alternative or successive. 19 Appeals though filed late were allowed in some rare cases, but there must be
exceptional circumstances to justify the relaxation of the rules.
Petitioner claims that his right to due process was violated when his counsel failed to assist him during
the promulgation of the judgment. He faults the Sandiganbayan for proceeding with the promulgation despite the
petitioner not then being assisted by his counsel, and being a layman he is not familiar with court processes and
procedure.
Section 6, Rule 120 of the Revised Rules of Criminal Procedure, as amended, provides:
SEC. 6. Promulgation of judgment. The judgment is promulgated by reading it in the
presence of the accused and any judge of the court in which it was rendered. However, if
the conviction is for a light offense, the judgment may be pronounced in the presence of his
counsel or representative. When the judge is absent or outside the province or city, the judgment
may be promulgated by the clerk of court.
If the accused is confined or detained in another province or city, the judgment may be
promulgated by the executive judge of the Regional Trial Court having jurisdiction over the place
of confinement or detention upon request of the court which rendered the judgment. The court
promulgating the judgment shall have authority to accept the notice of appeal and to approve the
bail bond pending appeal; provided, that if the decision of the trial court convicting the accused
changed the nature of the offense from non-bailable to bailable, the application for bail can only
be filed and resolved by the appellate court.
The proper clerk of court shall give notice to the accused personally or through his bondsman
or warden and counsel, requiring him to be present at the promulgation of the decision. If
the accused was tried in absentia because he jumped bail or escaped from prison, the notice to
him shall be served at his last known address. HTCAED
In case the accused fails to appear at the scheduled date of promulgation of judgment despite
notice, the promulgation shall be made by recording the judgment in the criminal docket and
serving him a copy thereof at his last known address or thru his counsel.
If the judgment is for conviction and the failure of the accused to appear was without justifiable
cause, he shall lose the remedies available in these Rules against the judgment and the court
shall order his arrest. Within fifteen (15) days from promulgation of judgment, however, the

accused may surrender and file a motion for leave of court to avail of these remedies. He shall
state the reasons for his absence at the scheduled promulgation and if he proves that his
absence was for a justifiable cause, he shall be allowed to avail of said remedies within fifteen
(15) days from notice. (Emphasis supplied.)
There is nothing in the rules that requires the presence of counsel for the promulgation of the judgment
of conviction to be valid. While notice must be served on both accused and his counsel, the latter's absence
during the promulgation of judgment would not affect the validity of the promulgation. Indeed, no substantial right
of the accused on the merits was prejudiced by such absence of his counsel when the sentence was
pronounced. 20
It is worth mentioning that petitioner never raised issue on the fact that his counsel was not around
during the promulgation of the judgment in his motion for reconsideration which merely prayed for reopening of
the case to enable him to present liquidation documents and receipts, citing financial constraints as the reason
for his failure to attend the scheduled hearings. Before this Court he now submits that the gross negligence of his
counsel deprived him of the opportunity to present defense evidence.
Perusing the records, we find that the prosecution made a formal offer of evidence on August 30, 2002.
At the scheduled presentation of defense evidence on September 4, 2002, petitioner's counsel, Atty. Manuel E.
Iral, called the attention of the SB to the fact that he had just received a copy of said formal offer, and requested
for 15 days to submit his comment thereon. The SB granted his request and set the case for hearing on
December 2 and 3, 2002. 21 No such comment had been filed by Atty. Iral. On November 18, 2002, due to
difficulty in securing a quorum with five existing vacancies in the court, the SB thus reset the hearing to April 21
and 22, 2003. 22 On January 14, 2003, the SB's Second Division issued a resolution admitting Exhibits "A" to "N"
after the defense failed to submit any comment to the formal offer of the prosecution, and stating that the
previously scheduled hearings on April 21 and 22, 2003 shall proceed. 23 On April 11, 2003, the SB for the same
reason again reset the hearing dates to August 11 and 12, 2003. 24
At the scheduled initial presentation of defense evidence on August 11, 2003, only petitioner appeared
informing that when he passed by that morning to his counsel's residence, the latter was ill and thus requested
for postponement. Without objection from the prosecution and on condition that Atty. Iral will present a medical
certificate within five days, the SB reset the hearing to October 16 and 17, 2003. The SB also said that if by the
next hearing petitioner is not yet represented by his counsel, said court shall appoint a counsel de oficio in the
person of Atty. Wilfredo C. Andres of the Public Attorney's Office. 25 However, on October 16, 2003, the SB
received a letter from petitioner requesting for postponement citing the untimely death of his nephew and swelling
of his feet due to arthritis. He assured the court of his attendance in the next hearing it will set at a later
date. 26 Accordingly, the SB reset the hearings to February 12 and 13, 2004. 27 On February 4, 2004, the SB
again received a letter from petitioner requesting another postponement for medical (arthritis) and financial (lack
of funds for attorney's/appearance fee) reasons. He assured the court of his availability after the May 10, 2004
elections. 28 This time, the SB did not grant the request and declared the case submitted for decision on the
basis of the evidence on record. 29
On March 30, 2004, Atty. Iral filed an Urgent Motion for Reconsideration of the February 12, 2004 order
submitting the case for decision, citing circumstances beyond his control the fact that he had no means to
come to Manila from Kidapawan, North Cotabato, he being jobless for the past four years. He thus prayed to be
allowed to present his evidence on May 17 and 18, 2004. 30 The prosecution opposed said motion, citing two
postponements in which petitioner's counsel have not submitted the required medical certificate and explanation
and failure to be present on October 16, 2003. 31 AaIDHS
In the interest of justice, the SB reconsidered its earlier order submitting the case for decision and gave
the petitioner a last chance to present his evidence on August 17 to 18, 2004. 32 On August 17, 2004, Atty. Iral
appeared but requested that presentation of evidence be postponed to the following day, which request was
granted by the SB. 33 The next day, however, only petitioner appeared saying that his lawyer is indisposed. Over
the objection of the prosecution and in the supreme interest of justice, the SB cancelled the hearing and
rescheduled it to November 15 and 16, 2004. Atty. Iral was directed to submit a verified medical certificate within
10 days under pain of contempt, and the SB likewise appointed a counsel de oficio in the person of Atty. Roberto

C. Omandam who was directed to be ready at the scheduled hearing in case petitioner's counsel is not ready,
stressing that the court will no longer grant any postponement. Still, petitioner was directed to secure the services
of another counsel if Atty. Iral is not available. 34 With the declaration by Malacaang that November 15, 2004 is
a special non-working holiday, the hearing was reset to November 16, 2004 as previously scheduled. 35
On November 16, 2004, Atty. Iral appeared but manifested that he has no witness available. Over the
objection of the prosecution, hearing was reset to March 14 and 15, 2005. Atty. Iral agreed to submit the case for
decision on the basis of prosecution evidence in the event that he is unable to present any witness on the
aforesaid dates. 36 On March 14, 2005, the SB again reset the hearing dates to May 26 and 27, 2005 for lack of
material time. 37 However, at the scheduled hearing on May 26, 2005, petitioner manifested to the court that Atty.
Iral was rushed to the hospital having suffered a stroke, thereupon the hearing was rescheduled for September
21 and 22, 2005 with a directive for Atty. Iral to submit a verified medical certificate. 38 On September 22, 2005,
Atty. Iral appeared but again manifested that he has no witness present in court. On the commitment of Atty. Iral
that if by the next hearing he still fails to present their evidence the court shall consider them to have waived such
right, the hearing was reset to February 8 and 9, 2006. 39 However, on February 9, 2006, the defense counsel
manifested that he has some other commitment in another division of the SB and hence he is constrained to
seek cancellation of the hearing. Without objection from the prosecution and considering that the intended
witness was petitioner himself, the SB reset the hearing to April 17 and 18, 2006, which dates were later moved
to August 7 and 8, 2006. 40 On August 7, 2006, over the objection of the prosecution, the SB granted the motion
for postponement by the defense on the ground of lack of financial capacity. The hearing was for the last time
reset to October 17 and 18, 2006, which date was later changed to October 11 and 12, 2006. 41 TcEDHa
On October 11, 2006, on motion of the prosecution, the SB resolved that the cases be submitted for
decision for failure of the defense to appear and present their evidence, and directed the parties to present their
respective memoranda within 30 days. 42 As only the prosecution submitted a memorandum, the SB declared
the cases submitted for decision on August 24, 2007. 43 Petitioner and his counsel were duly notified of the
promulgation of decision, originally scheduled on February 28, 2008 but was moved to March 27, 2008 in view of
the absence of petitioner and the Handling Prosecutor. 44 On that date, however, on motion of Atty. Iral, the
promulgation was postponed to April 14, 2008. 45 On April 14, 2008, both petitioner and his counsel failed to
appear, but since the notice to petitioner was sent only on April 3, 2008, the SB finally reset the promulgation of
judgment to May 26, 2008. 46 While supposedly absent during the promulgation, records showed that Atty. Iral
personally received on the same date a copy of the decision. 47
The foregoing shows that the defense was granted ample opportunity to present their evidence as in
fact several postponements were made on account of Atty. Iral's health condition and petitioner's lack of financial
resources to cover transportation costs. The SB exercised utmost leniency and compassion and even appointed
a counsel de oficio when petitioner cited lack of money to pay for attorney's fee. In those instances when either
petitioner or his counsel was present in court, the following documentary evidence listed during the pre-trial,
allegedly in the possession of petitioner, and which he undertook to present at the trial, were never produced in
court at any time: (1) Liquidation Report by petitioner; (2) Certification of Accountant Zamba Lajaratu of the
National Commission on IndigenousPeople, Region XII, Cotabato City; and (3) Different Certifications by project
officers and barangay captains. 48 If indeed these documents existed, petitioner could have readily submitted
them to the court considering the length of time he was given to do so. The fact that not a single document was
produced and no witness was produced by the defense in a span of 4 years afforded them by the SB, it can be
reasonably inferred that petitioner did not have those evidence in the first place.
The elements of malversation of public funds are:
1. that the offender is a public officer;
2. that he had the custody or control of funds or property by reason of the duties of his office;
3. that those funds or property were public funds or property for which he was accountable; and
4. that he appropriated, took, misappropriated or consented or, through abandonment or
negligence, permitted another person to take them. 49

There is no dispute on the existence of the first three elements; petitioner admitted having received the
cash advances for which he is accountable. As to the element of misappropriation, indeed petitioner failed to
rebut the legal presumption that he had misappropriated the said public funds to his personal use,
notwithstanding his unsubstantiated claim that he has in his possession liquidation documents. The SB therefore
committed neither reversible error nor grave abuse of discretion in convicting the petitioner of malversation for
failure to explain or account for his cash shortage by any liquidation or supporting documents. As this Court
similarly ruled in one case: 50
In the crime of malversation, all that is necessary for conviction is sufficient proof that the
accountable officer had received public funds, that he did not have them in his possession when
demand therefor was made, and that he could not satisfactorily explain his failure to do so. Direct
evidence of personal misappropriation by the accused is hardly necessary as long as the
accused cannot explain satisfactorily the shortage in his accounts.
In convicting petitioner, the Sandiganbayan cites the presumption in Article 217, supra, of the
Revised Penal Code, i.e., the failure of a public officer to have duly forthcoming any public funds
or property with which he is chargeable, upon demand by any duly authorized officer, is prima
facie evidence that he has put such missing fund or property to personal uses. The presumption
is, of course, rebuttable. Accordingly, if the accused is able to present adequate evidence that
can nullify any likelihood that he had put the funds or property to personal use, then that
presumption would be at an end and the prima facie case is effectively negated. This Court has
repeatedly said that when the absence of funds is not due to the personal use thereof by the
accused, the presumption is completely destroyed; in fact, the presumption is never deemed to
have existed at all. In this case, however, petitioner failed to overcome this prima facie evidence
of guilt. ISTCHE
There is grave abuse of discretion where the public respondent acts in a capricious, whimsical, arbitrary
or despotic manner in the exercise of its judgment as to be equivalent to lack of jurisdiction. The abuse of
discretion must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to
perform a duty enjoined by law, or to act at all in contemplation of law as where the power is exercised in an
arbitrary and despotic manner by reason of passion or hostility. 51 Under the facts on record, we find no grave
abuse of discretion on the part of the SB when it submitted the case for decision and rendered the judgment of
conviction on the basis of the prosecution evidence after the defense failed to present its evidence despite ample
opportunity to do so.
WHEREFORE, the petition is DISMISSED. The Decision promulgated on May 26, 2008 and Resolution
issued on November 18, 2008 by the Sandiganbayan in Criminal Case No. 26327 are AFFIRMED.
With costs against the petitioner.
SO ORDERED.
Corona, C.J., Leonardo-de Castro, Bersamin and Del Castillo, JJ., concur.
||| (Icdang v. Sandiganbayan, G.R. No. 185960, [January 25, 2012], 680 PHIL 265-285)

SECOND DIVISION
[G.R. No. 184091. January 31, 2011.]
EDWARD GARRICK VILLENA and PERCIVAL DOROJA, petitioners, vs. PEOPLE OF THE
PHILIPPINES, NOMAR B. DEGERON, CHRISTIAN DANDAN, and ELIZABETH
BORCELIS, respondents.
DECISION
NACHURA, J p:
Assailed in this petition 1 for review on certiorari under Rule 45 of the Rules of Court are the Resolutions dated April
30, 2008 2 and August 1, 2008 3 of the Court of Appeals (CA) in CA-G.R. SP No. 103224.

The antecedents
Petitioners Police Inspector (P/Insp.) Edward Garrick Villena and Police Officer 1 (PO1) Percival Doroja, together with
PO2 Nicomedes Lambas (PO2 Lambas), PO3 Dan Fermalino (PO3 Fermalino), 4 Police Chief Inspector Jovem C.
Bocalbos, PO3 Reynaldo Macalinao (PO3 Macalinao), PO1 Alvaro Yumang (PO1 Yumang), and Imelda Borcelis,
were indicted for the crime of robbery (extortion) 5 before the Regional Trial Court (RTC), Branch 202, Las Pias City.
The case was docketed as Criminal Case No. 05-0025.
After arraignment, where the accused all pled "not guilty," and pre-trial, trial on the merits ensued. Petitioners failed to
appear before the trial court to adduce evidence in their defense. It was only PO3 Macalinao who appeared before
the court to present his evidence.
On August 29, 2007, the RTC rendered its decision 6 convicting petitioners, together with PO2 Lambas, PO3
Fermalino, PO3 Macalinao, and PO1 Yumang, of the crime charged.
During the promulgation of judgment on September 3, 2007, petitioners again failed to appear despite proper notices
to them at their addresses of record. In the absence of petitioners, the promulgation was made pursuant to
paragraphs 4 and 5, Section 6, Rule 120 of the Revised Rules on Criminal Procedure. Consequently, the RTC issued
warrants of arrest against them.
On October 11, 2007, petitioners, through their new counsel, Atty. William F. delos Santos, filed their separate notices
of appeal before the RTC. In the said notices, they explained that they failed to attend the promulgation of judgment
because they did not receive any notice thereof because they were transferred to another police station. 7
In the Order 8 dated November 20, 2007, the RTC denied due course to petitioners' notices of appeal. The RTC
ratiocinated in this wise DTEScI
Case record shows that the Decision of the court dated August 29, 2007 was promulgated on
September 3, 2007. The appropriate notices and subpoenas were duly sent to the accused but
[they were] returned with the notation that they are no longer residing at their given address/es. In
the present case, all three accused raised the excuse that they were not notified of the setting of
the promulgation. The Court finds this ground unmeritorious since the accused have the
obligation to inform the Court of the changes in their address in order that the orders, notices and
other court processes may be properly sent to them. In any case, the counsels on record for the
accused Macalinao, Doroja and Villena were duly notified of the scheduled hearings and
promulgation of judgment.
Moreover, with the non-appearance of the accused-movants during the presentation of defense
evidence and on the scheduled promulgation of the decision, the Court already issued a Warrant
of Arrest against the three accused. This means that they have lost their standing in court and
unless they surrender or submit to the jurisdiction of the court, they are deemed to have waived
any right to seek relief from the court. (People v. Del Rosario, et al., G.R. Nos. 107297-98,
December 19, 2000, citing People v. Mapalao, 197 SCRA 79, 87-88 [1991]).
IN VIEW THEREOF, the Notices of Appeal filed by accused PO3 Reynaldo Macalinao, PO1
Percival Doroja and P/Insp. Edward Garrick Villena are hereby DENIED DUE COURSE.
SO ORDERED.
Subsequently, PO3 Macalinao filed a Motion with Leave of Court to Reconsider the November 20, 2007
Order. 9 Petitioners likewise filed a joint Motion for Reconsideration (of the Order of November 20, 2007). 10
Resolving the said motions, the RTC issued its Order 11 dated February 8, 2008, granting the prayer for
reconsideration of PO3 Macalinao, giving his notice of appeal due course. However, the said Order denied herein
petitioners' motion, for failure to adduce any valid excuse or compelling justification for the reconsideration, reversal,
and setting aside of the November 20, 2007 Order. The RTC found
. . . In the case of accused Reynaldo Macalinao, it is pristinely clear from the case records that he
has been actually attending the scheduled hearings of the case since its inception. He was also
the only one, among the police officers accused in this case, who testified in Court in defense of
the charges leveled against him.
Moreover, the Court, after a second look at the records finds that his failure to attend the
promulgation of judgment on September 3, 2007 (of the Decision dated August 29, 2007) was

due to an excusable and justifiable reason. As stated in his Manifestation/Motion on the

Subpoena dated August 29, 2007, the basis for his non-appearance was for the reason that he
was transferred from Raxa Bago, Tondo, Police Station (PS-1) to Police Station 11, Meisic
located at Felipe II, Binondo, Manila, since July 26, 2006, as evidenced by [the] Certification
dated September 19, 2007 issued by P/Insp. Ricardo Tibay Tangunan, Chief Administration
Section.
We cannot say the same thing for the other two (2) accused, namely, PO1 Percival Doroja and
P/Insp. Edward Garrick Villena as they have not manifested nor informed the Court of the cause
of their non-appearances despite notices and subpoenas sent to them nor sought for the lifting of
the Bench Warrant issued against them unlike accused Reynaldo Macalinao. Also, it can be
keenly observed that they both failed to appear in several if not most of the hearings set by the
Court since the commencement of the trial of the instant case against them. Noteworthy of such
non-appearances in court despite due notices and subpoenas are the scheduled hearings on
November 23, 2005, February 8, 2006, February 15 and 22, 2006, April 26, 2006, May 10, 2006,
June 21, 2006, September 20, 2006, October 11 and 25, 2006, November 29, 2006, January 24,
2007, February 26, 2007, March 14 and 19, 2007, April 25, 2007 and the promulgation of
judgment on September 3, 2007.
From all the foregoing actions during the trial of this instant criminal case, and after their
conviction by this Court, it is only accused PO3 Reynaldo Macalinao who had shown sufficient
interest in defending his case. The records show no unusual and deliberate delay caused by him
in the trial of the criminal case.
As to the other two accused, it can[not] be gainsaid that they have not proffered any cogent and
excusable reason to justify their non-appearance during the aforesaid dates and they only asked
for judicial leniency, which this Court cannot give. They have only themselves to be
blamed. 12 cHCaIE
Aggrieved, petitioners filed a petition 13 for certiorari, prohibition, and mandamus under Rule 65 of the Rules of Court
before the CA. The CA, in its Resolution 14 dated April 30, 2008, initially dismissed the petition for not being
accompanied with clearly legible duplicate originals or certified true copies of the questioned Orders. Petitioners thus
moved to reconsider the April 30, 2008 Resolution.
In the August 1, 2008 Resolution, 15 even as it took into account the merits of petitioners' motion for reconsideration,
the CA nevertheless resolved to deny the same for failure to show prima facie evidence of any grave abuse of
discretion on the part of the RTC. Hence, this petition ascribing error to the CA in dismissing their petition and in not
finding grave abuse of discretion against the RTC for denying their notices of appeal.
Petitioners now argue that the CA erred in upholding the RTC in its denial of their respective notices of appeal since
they already contained the required manifestation and information as to the cause of their non-appearance on the
scheduled promulgation on September 3, 2007, i.e., lack of notice. According to them, their notices of appeal have
substantially complied with the requirement of Section 6, Rule 120 of the Rules of Court, and have effectively placed
them under the RTC's jurisdiction. They allege further that their motion for reconsideration should have been
considered by the CA since they have offered the explanations that their failure to appear during the promulgation of
judgment was due to the change of their respective addresses, and that their former counsel of record did not inform
them of the need to notify the RTC thereof, much less properly advise them of the current status of the proceedings.
As regards their failure to move for the lifting of the bench warrants issued for their arrest, petitioners asseverate that
the Rules of Court do not provide for such a requirement before they could avail of the remedies they seek.
The petition is without merit.
While it is true that an appeal is perfected upon the mere filing of a notice of appeal and that the trial court thereupon
loses jurisdiction over the case, this principle presupposes that the party filing the notice of appeal could validly avail
of the remedy of appeal and had not lost standing in court. In this case, petitioners have lost their standing in court by
their unjustified failure to appear during the trial and, more importantly, during the promulgation of judgment of
conviction, and to surrender to the jurisdiction of the RTC.

Petitioners insist that their failure to attend the promulgation of judgment was due to the lack of notice of the date
thereof, allegedly because they were transferred to another police station. Notably, however, petitioners did not proffer
any documentary and convincing proof of their supposed transfer, not even to inform the court as to which police
station they were transferred. In contrast, their fellow accused PO3 Macalinao submitted to the RTC a Certification
issued by P/Insp. Ricardo Tibay Tangunan, Chief of the Philippine National Police Administrative Section, evidencing
his transfer from Police Station (PS-1), Raxa Bago, Tondo Manila to Police Station 11, Meisic in Binondo, Manila.
Petitioners were duty bound to inform the RTC of their transfer, assuming its truth, so that notices may be sent to their
respective new mailing addresses. They were remiss in the discharge of this responsibility.
Petitioners contend that their act of filing notices of appeal was already substantial compliance with the requirements
of Section 6, Rule 120 of the Rules of Court.
We differ. Said provision states AEIcTD
Sec. 6. Promulgation of judgment. The judgment is promulgated by reading it in the presence
of the accused and any judge of the court in which it was rendered. However, if the conviction is
for a light offense, the judgment may be pronounced in the presence of his counsel or
representative. When the judge is absent or outside the province or city, the judgment may be
promulgated by the clerk of court.
If the accused is confined or detained in another province or city, the judgment may be
promulgated by the executive judge of the Regional Trial Court having jurisdiction over the place
of confinement or detention upon request of the court which rendered the judgment. The court
promulgating the judgment shall have the authority to accept the notice of appeal and to approve
the bail bond pending appeal; provided, that if the decision of the trial court convicting the
accused changed the nature of the offense from non-bailable to bailable, the application for bail
can only be filed and resolved by the appellate court.
The proper clerk of court shall give notice to the accused personally or through his bondsman or
warden and counsel, requiring him to be present at the promulgation of the decision. If the
accused was tried in absentia because he jumped bail or escaped from prison, the notice to him
shall be served at his last known address.
In case the accused fails to appear at the scheduled date of promulgation of judgment despite
notice, the promulgation shall be made by recording the judgment in the criminal docket and
serving him a copy thereof at his last known address or thru his counsel.
If the judgment is for conviction and the failure of the accused to appear was without justifiable
cause, he shall lose the remedies available in these rules against the judgment and the court
shall order his arrest. Within fifteen (15) days from promulgation of judgment, however, the
accused may surrender and file a motion for leave of court to avail of these remedies. He
shall state the reasons for his absence at the scheduled promulgation and if he proves
that his absence was for a justifiable cause, he shall be allowed to avail of said remedies
within fifteen (15) days from notice. 16
Thus, the accused who failed to appear at the promulgation of the judgment of conviction shall lose the remedies
available under the Rules of Court against the judgment (a) the filing of a motion for new trial or reconsideration
(Rule 121), and (b) an appeal from the judgment of conviction (Rule 122). However, the Rules allow the accused to
regain his standing in court in order to avail of these remedies by: (a) his surrender, and (b) his filing of a motion for
leave of court to avail of these remedies, stating therein the reasons for his absence, within 15 days from the date of
promulgation of judgment. If the trial court finds that his absence was for a justifiable cause, the accused shall be
allowed to avail of the said remedies within 15 days from notice or order finding his absence justified and allowing him
the available remedies against the judgment of conviction. 17
Thus, petitioners' mere filing of notices of appeal through their new counsel, therein only explaining their absence
during the promulgation of judgment, cannot be considered an act of surrender, despite the fact that said notices were
filed within 15 days from September 28, 2007, the purported date when their new counsel personally secured a copy
of the judgment of conviction from the RTC. The term "surrender" under Section 6, Rule 120 of the Rules of Court
contemplates an act whereby a convicted accused physically and voluntarily submits himself to the jurisdiction of the

court to suffer the consequences of the verdict against him. The filing of notices of appeal cannot suffice as a physical
and voluntary submission of petitioners to the RTC's jurisdiction. It is only upon petitioners' valid surrender, and only
after proper motion, that they can avail of the remedy of appeal. Absent compliance with these requirements, their
notices of appeal, the initiatory step to appeal from their conviction, were properly denied due course.
Even if petitioners' notices of appeal were given due course, the CA would only be constrained to dismiss their
appeal. This is because petitioners, who had standing warrants of arrest but did not move to have them lifted, are
considered fugitives from justice. Since it is safe to assume that they were out on bail during trial, petitioners were
deemed to have jumped bail when they failed to appear at the promulgation of their sentence. This is a ground for
dismissal of an appeal under Section 8, Rule 124 of the Rules of Court, which provides IHEAcC
Sec. 8. Dismissal of appeal for abandonment or failure to prosecute. The Court of Appeals
may, upon motion of the appellee or motu proprio and with notice to the appellant in either case,
dismiss the appeal if the appellant fails to file his brief within the time prescribed by this Rule,
except where the appellant is represented by a counsel de officio.
The Court of Appeals may also, upon motion of the appellee or motu proprio, dismiss the
appeal if the appellant escapes from prison or confinement, jumps bail or flees to a
foreign country during the pendency of the appeal. 18
Once an accused escapes from prison or confinement, jumps bail (as in the case of petitioners), or flees to a foreign
country, he loses his standing in court. Unless he surrenders or submits to the jurisdiction of the court, he is deemed
to have waived any right to seek relief from the court. 19
What is more, the judgment of conviction against petitioners had already acquired finality. Under Section 6, Rule 120
of the Rules of Court, they had only 15 days from the date of promulgation of judgment within which to surrender and
to file the required motion for leave of court to avail of the remedies against the judgment. As the judgment was
promulgated on September 3, 2007, petitioners had only until September 18, 2007 to comply with the mandatory
requirements of the said rule.
This Court has invariably ruled that the right to appeal is neither a natural right nor a part of due process. It is merely
a statutory privilege, and, as such, may be exercised only in the manner and in accordance with the provisions of the
law. The party who seeks to avail of the same must comply with the requirements of the Rules. Failing to do so, the
right to appeal is lost. 20
WHEREFORE, the petition is DENIED. The Resolutions dated April 30, 2008 and August 1, 2008 of the Court of
Appeals in CA-G.R. SP No. 103224 are AFFIRMED. Costs against petitioners.
SO ORDERED.
Carpio, Peralta, Abad and Mendoza, JJ., concur.
||| (Villena v. People, G.R. No. 184091, [January 31, 2011], 656 PHIL 127-137)
[G.R. No. 178984. August 19, 2009.]
ERLINDA MAPAGAY, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
DECISION
CHICO-NAZARIO, ** J p:
In this Petition for Review on Certiorari 1 under Rule 45 of the Rules of Court, petitioner Erlinda Mapagay seeks the
reversal of the Decision, 2 dated 15 February 2007, and Resolution, 3 dated 12 July 2007, of the Court of Appeals in
CA-G.R. CR No. 28978, which affirmed in toto the Decision 4 of the Regional Trial Court (RTC), Branch 196,
Paraaque City, in Criminal Case No. 04-0494, dated 14 September 2004, and the Decision 5 of the Metropolitan
Trial Court (MeTC), Branch 78, Paraaque City, in Criminal Case No. 93520, dated 26 April 2004, finding her guilty of
violating Batas Pambansa Blg. 22, otherwise known as the Bouncing Checks Law.
The records of the case bear the following facts:
On 29 September 1997, an Information was filed before the MeTC charging petitioner with violating Batas Pambansa
Blg. 22. 6 The accusatory portion of the information reads:
That on or about the 20th day of October 1996, in the Municipality of Paraaque, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did

then and there, willfully, unlawfully, and feloniously issue to apply on account or for value the
check described below:
Check No.
:
0011997
Drawn Against
:
PhilBank
In the Amount of
:
P40,000.00
Dated/Postdated
:
November 20, 1996
Payable to
:
Cash
Said accused well knowing at the time of issue did not have sufficient funds in or credit with the
bank for payment in full of the amount of such check upon its presentment which check when
presented for payment within ninety (90) days from the date thereto, was subsequently
dishonored by the drawee bank for the reason "Account Closed" and despite receipt of notice of
such dishonor, the accused failed to pay said payee the face amount of said check or to make
arrangement for full payment thereof within five (5) banking days after receiving said
notice. TCDcSE
When arraigned on 9 November 1998, petitioner, assisted by her counsel de oficio, pleaded "Not Guilty" to the
charge. 7 On 30 June 1999, the MeTC provisionally dismissed the instant case on the basis of an amicable
settlement between petitioner and private complainant Relindia dela Cruz. 8 On 9 August 1999, private complainant
moved for the revival of the present case claiming that petitioner failed to comply with the terms of their
agreement. 9 Said motion was granted by the MeTC in its Order dated 18 February 2000. 10
On 7 June 2000, the MeTC issued an Order terminating the pre-trial conference on the instant case. 11 Trial on the
merits thereafter ensued.
The prosecution presented private complainant as its sole witness.
Private complainant testified that petitioner borrowed money from her in November 1996. Petitioner gave her a signed
check for the loan and promised to replace the check with cash. Upon failure of petitioner to give her cash despite
repeated demands, she presented the check to the drawee bank. The check was dishonored by the drawee bank for
the reason "Account Closed". Thereafter, private complainant consulted a lawyer. Her lawyer sent a demand letter to
petitioner, but the latter refused to receive it. Private complainant told petitioner to pay the loan or the former would
sue her in court. Petitioner promised to pay, but failed to do so. Thus, she filed a case for violation of Batas Pambansa
Blg. 22 against petitioner. 12
On cross-examination, private complainant stated that there was a previous agreement between her and petitioner
not to deposit the check; that she deposited the check despite the said agreement; that before depositing the check,
she told petitioner that she would deposit the check if petitioner would not pay the loan; that petitioner refused to
receive the demand letter; and that private complainant's lawyer sent the demand letter by registered mail. 13
The prosecution adduced documentary and object evidence to buttress the aforesaid allegation, to wit: (a) three
pictures of petitioner attached to her bail bond (Exhibit "A"); 14 (b) PhilBank Check No. P 260 0011997, dated 20
November 1996, for the amount of P40,000.00 and the notation "Account Closed" (Exhibit "B"); 15 (c) notice of
dishonor dated 3 January 1997 (Exhibit "B-3"); 16 (d) demand letter, dated 7 May 1997, addressed to petitioner
(Exhibit "C"); 17 (e) registry return receipt (Exhibit "C-1"); 18(f) return card (Exhibit "C-2"); 19 and (g) envelope with
the notation "RTS" or Refused to Receive * (Exhibit "C-3"). 20
After the prosecution had formally offered its evidence and rested its case, the defense moved to reset its initial
presentation of evidence to 2 October 2000, which was granted by the MeTC. 21 Such initial presentation of evidence
was further reset to later dates, but petitioner failed to appear and present initial evidence on those dates despite
being notified and subpoenaed. Thus, upon motion of the prosecution, the MeTC issued an Order on 19 June 2002
declaring the instant case submitted for decision. 22
On 26 April 2004, the MeTC rendered a Decision finding petitioner guilty of violating Batas Pambansa Blg. 22.
Petitioner was sentenced to one-year imprisonment and was ordered to pay private complainant P40,000.00. The
dispositive portion of the MeTC Decision reads:
WHEREFORE, premises considered, this Court finds the accused, ERLINDA MAPAGAY, GUILTY
beyond reasonable doubt of the Violation of Batas Pambansa Bilang 22and hereby sentences

her with one (1) year imprisonment and to pay private complainant the total amount of FORTY
THOUSAND PESOS (P40,000.00). 23
Petitioner filed a Notice of Appeal on 10 June 2004. 24 Pursuant thereto, the MeTC forwarded the records of the
instant case to the RTC for disposition. 25
Petitioner submitted her "Appellant's Brief" with the RTC on 2 August 2004. 26 On 14 September 2004, the RTC
promulgated its Decision affirming in toto the MeTC Decision. Petitioner filed a Motion for Reconsideration 27 but this
was denied by the RTC for being filed beyond the reglementary period. 28 Aggrieved, petitioner appealed to the Court
of Appeals. 29
On 15 February 2007, the Court of Appeals rendered its Decision dismissing petitioner's appeal. It sustained the
RTC's ruling that petitioner's motion for reconsideration with the RTC was filed out of time. Hence, it held that the RTC
Decision had become final and unalterable. Petitioner filed a Motion for Reconsideration 30 of the Court of Appeals'
Decision, but this was denied. 31 ESTaHC
Hence, petitioner filed the instant petition maintaining that the Court of Appeals erred in denying due course to her
appeal.
Under the Revised Rules of Criminal Procedure, a motion for reconsideration of the judgment of conviction may be
filed within 15 days from the promulgation of the judgment or from notice of the final order appealed from. 32 Failure
to file a motion for reconsideration within the reglementary period renders the subject decision final and executory. 33
Once a judgment attains finality, it becomes immutable and unalterable. It may no longer be modified in any respect,
even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law, and
regardless of whether the modification is attempted to be made by the court rendering it or by this Court. 34Decisions
that have long become final and executory cannot be annulled by courts, and the appellate court is deprived of
jurisdiction to alter the trial court's final judgment. 35 This doctrine is founded on considerations of public policy and
sound practice that, at the risk of occasional errors, judgments must become final at some point in time. 36
Evidence on record shows that petitioner's counsel of record, Atty. Antonio J. Ballena (Atty. Ballena), received on 21
September 2004 a copy of the RTC Decision dated 14 September 2004, which affirms petitioner's conviction for
violation of Batas Pambansa Blg. 22. 37 Hence, petitioner may file a motion for reconsideration within 15 days from
such date of receipt, which must be on or before 6 October 2004. However, petitioner filed her motion for
reconsideration only on 3 November 2004, or on the 43rd day, which was obviously way beyond the 15-day
reglementary period. 38 Consequently, the RTC Decision dated 14 September 2004 has become final and
executory. ECcTaH
Petitioner alleges that she learned of the RTC Decision only on 20 October 2004 when she asked a friend to check on
the status of the case and that Atty. Ballena did not inform her of the RTC Decision.
The rule is that when a party is represented by counsel, notices of all kinds, including motions, pleadings and orders,
must be served on the counsel. Notice to counsel of record is binding on the client, and the neglect or failure of
counsel to inform him of an adverse judgment resulting in the loss of his right to appeal is not a ground for setting
aside a judgment, valid and regular on its face. 39
It is indeed settled that the omission or negligence of counsel binds the client. This is more true if the client did not
make a periodic check on the progress of her case. Otherwise, there would be no end to a suit, so long as a new
counsel could be employed who would allege and show that the prior counsel had not been sufficiently diligent,
experienced, or learned. 40
In the case at bar, there is no showing that petitioner had constantly followed up her case with Atty. Ballena. Petitioner
did not even bother to call or personally go to the RTC to verify the progress of her case. Clearly, petitioner did not
exercise diligence in pursuing her case.
Petitioner argues that the technical rules of procedure should be relaxed in the interest of substantial justice, so as to
afford her opportunity to present her case.
We have invariably pronounced that the bare invocation of "the interest of substantial justice" is not a magic wand that
will automatically compel this Court to suspend procedural rules. Rules of Procedure are tools designed to promote
efficiency and orderliness, as well as to facilitate the attainment of justice, such that strict adherence thereto is

required. Procedural rules are not to be belittled or dismissed, simply because their non-observance may have
resulted in prejudice to a party's substantive rights. Like all rules, they are required to be followed except only for the
most persuasive reasons, when they may be relaxed to relieve a litigant of an injustice not commensurate with the
degree of his thoughtlessness in not complying with the procedure prescribed. Rules of Procedure, especially those
prescribing the time within which certain acts must be done, are absolutely indispensable to the prevention of
needless delays and to the orderly and speedy discharge of justice. We have held that the rules may be relaxed only
in "exceptionally meritorious cases". 41
In the instant case, we find no persuasive or exceptionally meritorious reasons to justify the relaxation of the rules.
The circumstances obtaining in the instant case show that petitioner was accorded opportunity to settle her liability to
private complainant and to present her case during the proceedings. As earlier recounted, the MTC, upon motion of
petitioner, provisionally dismissed the case on the basis of an amicable settlement between her and private
complainant. However, the case was revived, because petitioner failed to comply with the settlement. Petitioner was
given several opportunities during the trial to present evidence in her defense. Nonetheless, despite being duly
notified and subpoenaed, she did not appear during the trial proper and promulgation of judgment.
It should be noted that private complainant has not been fully or partially paid the amount stated in the check. The
time-honored principle is "Justice is for all. Litigants have equal footing in a court of law. Rules are laid down for the
benefit of all and should not be made dependent upon a suitor's sweet time and own bidding". 42
Given the foregoing, we find no error in the Decision and Resolution of the Court of Appeals denying petitioner's
appeal.
WHEREFORE, the instant Petition is hereby DENIED. The Decision, dated 15 February 2007 and Resolution dated
12 July 2007, of the Court of Appeals in CA-G.R. CR No. 28978, are hereby AFFIRMED in toto.
SO ORDERED.
Carpio Morales, * Velasco, Jr., Nachura and Peralta, JJ., concur.
||| (Mapagay v. People, G.R. No. 178984, [August 19, 2009], 613 PHIL 91-100)

[G.R. No. 154130. August 20, 2004.]

BENITO ASTORGA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
RESOLUTION
YNARES-SANTIAGO, J p:
On October 1, 2003, we rendered a Decision in this case affirming petitioners conviction by the Sandiganbayan of the
crime of Arbitrary Detention. Petitioner now seeks a reconsideration of our Decision.
The facts are briefly restated as follows:
Private offended parties Elpidio Simon, Moises de la Cruz, Wenefredo Maniscan, Renato Militante and Crisanto
Pelias are members of the Regional Special Operations Group (RSOG) of the Department of Environment and
Natural Resources, Tacloban City. On September 1, 1997, they, together with SPO3 Andres B. Cinco, Jr. and SPO1
Rufo Capoquian of the Philippine National Police Regional Intelligence Group, were sent to the Island of Daram,
Western Samar to conduct intelligence operations on possible illegal logging activities. At around 4:30-5:00 p.m., the
team found two boats measuring 18 meters in length and 5 meters in breadth being constructed at Barangay LocobLocob. There they met petitioner Benito Astorga, the Mayor of Daram, who turned out to be the owner of the boats. A
heated altercation ensued between petitioner and the DENR team. Petitioner called for reinforcements and, moments

later, a boat bearing ten armed men, some wearing fatigues, arrived at the scene. The DENR team was then brought
to petitioners house in Daram, where they had dinner and drinks. The team left at 2:00 a.m. IaEACT
On the basis of the foregoing facts, petitioner was charged with and convicted of Arbitrary Detention by the
Sandiganbayan in Criminal Case No. 24986. On petition for review, we rendered judgment as follows:
WHEREFORE, in view of the foregoing, the petition is hereby DENIED. The Decision of the
Sandiganbayan in Criminal Case No. 24986, dated July 5, 2001 finding petitioner
BENITO ASTORGA guilty beyond reasonable doubt of the crime of Arbitrary Detention and
sentencing him to suffer the indeterminate penalty of four (4) months of arresto mayor, as
minimum, to one (1) year and eight (8) months of prision correccional, as maximum, is
AFFIRMED in toto.
Costs de oficio.
SO ORDERED.
Petitioner filed a Motion for Reconsideration, which was denied with finality on January 12, 2004. 1 Petitioner then
filed an Urgent Motion for Leave to File Second Motion for Reconsideration 2 with attached Motion for
Reconsideration, 3 wherein he makes the following submissions:
1. THE ARMED MEN WERE NOT SUMMONED BY PETITIONER FOR THE PURPOSE OF
DETAINING THE PRIVATE OFFENDED PARTIES;
2. THERE IS NO EVIDENCE THAT THE SUPPOSED VICTIMS INSISTED ON LEAVING THE
PLACE WHERE THEY WERE SUPPOSED TO BE DETAINED;
3. THE SUPPOSED VICTIMS THEMSELVES HAVE DECLARED THE INNOCENCE OF THE
PETITIONER;
4. CRIMINAL INTENT ON THE PART OF THE ACCUSED IS CLEARLY WANTING IN THE
INSTANT CASE. 4
Subsequently, petitioner filed a Supplement to the Second Motion for Reconsideration. 5
The prosecution was required to comment on petitioners second Motion for Reconsideration and the Supplement
thereto.
We find the grounds raised by the second Motion for Reconsideration well-taken. 6
While a second motion for reconsideration is, as a general rule, a prohibited pleading, it is within the sound discretion
of the Court to admit the same, provided it is filed with prior leave whenever substantive justice may be better served
thereby. ESIcaC
The rules of procedure are merely tools designed to facilitate the attainment of justice. They were
conceived and promulgated to effectively aid the court in the dispensation of justice. Courts are
not slaves to or robots of technical rules, shorn of judicial discretion. In rendering justice, courts
have always been, as they ought to be, conscientiously guided by the norm that on the balance,
technicalities take a backseat against substantive rights, and not the other way around. Thus, if
the application of the Rules would tend to frustrate rather than promote justice, it is always within
our power to suspend the rules, or except a particular case from its operation. 7
The elements of the crime of Arbitrary Detention are:
1. That the offender is a public officer or employee.
2. That he detains a person.
3. That the detention is without legal grounds. 8
The determinative factor in Arbitrary Detention, in the absence of actual physical restraint, is fear. After a careful
review of the evidence on record, we find no proof that petitioner instilled fear in the minds of the private offended
parties.
Indeed, we fail to discern any element of fear from the narration of SPO1 Rufo Capoquian, the police officer who
escorted the DENR Team during their mission. On the contrary, what appears is that petitioner, being then a
municipal mayor, merely extended his hospitality and entertained the DENR Team in his house. SPO1 Capoquian
testified thus:
ATTY. JUMAMIL:
q After Bagacay you arrived in what barangay in Daram?

a We were on our way to Barangay Sta. Rita in Daram but on our way we saw a boat being
constructed there so we proceeded to Barangay Lucodlucod (sic).
q And you arrived at 5:00 oclock?
a Yes sir.
q And you left at 2:00 oclock in the morning of September 2?
a Yes sir.
q And you ate dinner between 5:00 oclock to 2:00 oclock in the morning of September 2, is that
correct?
a Yes sir. Mayor Astorga told us let us have dinner.
q And Mayor Astorga brought you to a house where you had dinner?
a Yes sir. cTSDAH
q And of course you also partook of wine?
a I know they had wine but with respect to us we had no wine sir.
xxx xxx xxx
AJ NARIO:
q While you were taking your dinner from 7 to 8:00 oclock Mayor Astorga was with you having
dinner?
a Yes Your Honor.
q You did not hear the conversation between the Mayor and the foresters, the complainants
here?
a I could not hear anything important because they were just laughing.
xxx xxx xxx
AJ PALATTAO:
q And then according to you there was laughter what was the cause of this laughter?
a Probably they were talking of something humorous. 9
The testimonial evidence likewise shows that there was no actual restraint imposed on the private offended parties.
SPO1 Capoquian in fact testified that they were free to leave the house and roam around the barangay. Furthermore,
he admitted that it was raining at that time. Hence, it is possible that petitioner prevented the team from leaving the
island because it was unsafe for them to travel by boat.
ATTY. JUMAMIL:
q It was raining at that time, is that correct?
a Yes sir it was raining.
q And the weather was not good for motorized travel at that particular time that you were in
Lucoblucob, Daram?
a I know it is raining but I could not say that you could not travel.
q What was the condition of the sea at that time when you were in Lucoblucob?
a The sea was good in fact we did not get wet and there were no waves at that time. EcSCHD
q But it was raining the whole day?
a It was not raining at the day but after we ate in the evening it rained.
q It was raining hard in fact after 8:00 p.m. up to 1:00 oclock in the morning is that correct?
a A little bit hard I dont know when the rain stopped, sir.
q It is possible that it rain . . . the rain stopped at 1:00 oclock in the morning of September 2?
a I dont remember sir.
xxx xxx xxx
AJ PALATTAO:
q Were you told not to go away from the place?
a No Your Honor.
q Up to what point did you reach when you were allegedly prevented to go somewhere?
a They did not say anything sir.
q Where did you go after that?

a Just down until it rained.

q If you want to go, let us say, you want to leave that place, on your part, was there somebody
prevented you to go to another place?
a I dont know Your Honor.
q But on your part can you just leave that place or somebody will prevent you to go somewhere
else?
a What I felt I will not be able to leave because we were already told not to leave the barangay.
q In other words, you can go places in that barangay but you are not supposed to leave that
barangay, is this Barangay Daram?
a Barangay Lucoblucob, Your Honor.
q On your part according to you you can go places if you want although in your impression you
cannot leave the barangay. How about the other companions like Mr. Simon, Cruz and
Maniscan, can they leave the place?
a No Your Honor. CSHEca
q Why are you very positive that in your case you can leave but in the case of those I have
enumerated they cannot, why?
a If only in that barangay we can leave, Your Honor. 10
Mr. Elpidio Simon, one of the private offended parties, took the witness stand on August 16, 2000 but did not
complete his testimony-in-chief due to lack of material time. His testimony only covered preliminary matters and did
not touch on the circumstances of the alleged detention. 11
On August 23, 2000, all the private offended parties, namely, Elpidio E. Simon, Moises de la Cruz, Renato Militante,
Crisanto Pelias and Wenefredo Maniscan, executed a Joint Affidavit of Desistance stating, in pertinent part:
xxx xxx xxx;
6. That what transpired may have been caused by human limitation aggravated by the exhaustion
of the team in scouring the shores of the small islands of Samar for several days. Mayor
Benito Astorga may have also been confronted with the same predicament, hence our
confrontation resulted to a heated argument and the eventual misunderstanding;
7. Considering that he is the local Chief Executive of the Municipality of Daram, Samar our
respect for him prevailed when he ordered us to take dinner with him and other local
residents thereat, so we capitulated whose invitation was misinterpreted by us;
8. That thereafter, a natural and spontaneous conversation between the team and the group of
Mayor Astorga during the dinner and we were eventually allowed to leave Daram,
Samar;
9. That upon our return to our respective official stations we reported the incident to our
supervisors who required us to submit our affidavit;
10. That at present our differences had already been reconciled and both parties had already
express apologies and are personally no longer interested to pursue the case against
the Mayor, hence, this affidavit of desistance;
xxx xxx xxx. 12
Thereafter, the private offended parties did not appear anymore in court to testify. This notwithstanding, the
Sandiganbayan convicted petitioner of the crime of Arbitrary Detention on the basis of the testimonies of SPO1
Capoquian and SPO3 Cinco, the police escorts of the DENR Team. AHDacC
The quoted portions of SPO1 Capoquians testimony negate the element of detention. More importantly, fear is a
state of mind and is necessarily subjective. 13Addressed to the mind of the victim, its presence cannot be tested by
any hard-and-fast rule but must instead be viewed in the light of the perception and judgment of the victim at the time
of the crime. 14 As such, SPO1 Capoquian and SPO3 Cinco, not being victims, were not competent to testify on
whether or not fear existed in the minds of the private offended parties herein. It was thus error for the Sandiganbayan
to have relied on their testimonies in convicting petitioner.

Verily, the circumstances brought out by SPO1 Capoquian created a reasonable doubt as to whether petitioner
detained the DENR Team against their consent. The events that transpired are, to be sure, capable to two
interpretations. While it may support the proposition that the private offended parties were taken to petitioners house
and prevented from leaving until 2:00 a.m. the next morning, it is equally plausible, if not more so, that petitioner
extended his hospitality and served dinner and drinks to the team at his house. He could have advised them to stay
on the island inasmuch as sea travel was rendered unsafe by the heavy rains. He ate together with the private
offended parties and even laughed with them while conversing over dinner. This scenario is inconsistent with a hostile
confrontation between the parties. Moreover, considering that the Mayor also served alcoholic drinks, it is not at all
unusual that his guests left the house at 2:00 a.m. the following morning.
In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved. 15 He is entitled to
an acquittal unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such
a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that
degree of proof which produces conviction in an unprejudiced mind. 16
As held in several cases, when the guilt of the accused has not been proven with moral certainty, the presumption of
innocence of the accused must be sustained and his exoneration be granted as a matter of right. For the
prosecutions evidence must stand or fall on its own merit and cannot be allowed to draw strength from the weakness
of the evidence for the defense. 17 Furthermore, where the evidence for the prosecution is concededly weak, even if
the evidence for defense is also weak, the accused must be duly accorded the benefit of the doubt in view of the
constitutional presumption of innocence that an accused enjoys. When the circumstances are capable of two or more
inferences, as in this case, one of which is consistent with the presumption of innocence while the other is compatible
with guilt, the presumption of innocence must prevail and the court must acquit. It is better to acquit a guilty man than
to convict an innocent man. 18
WHEREFORE, in view of the foregoing, the Decision dated October 1, 2003 is RECONSIDERED and SET ASIDE.
The appealed judgment of the Sandiganbayan in Criminal Case No. 24986 is REVERSED. Petitioner
Benito Astorga is ACQUITTED of the crime of Arbitrary Detention on the ground of reasonable doubt.
No pronouncement as to costs.
SO ORDERED.
Davide, Jr., C .J ., Carpio and Azcuna, JJ ., concur.
||| (Astorga v. People, G.R. No. 154130, [August 20, 2004], 480 PHIL 585-596)