Concept of Passive Malversation

MB CAMPANILLAWEDNESDAY, FEBRUARY 8, 2017

Malversation is a concept similar to that of estafa through

misappropriation under Article 315 and theft under Article 308.

1. Malversation through misappropriation - If the mode of

committing malversation is appropriation or misappropriation, the
concept of this crime is similar to that of estafa through
misappropriation. For example, a provincial cashier, who grants loans
to provincial employees through the "vale" system, is liable for
malversation through misappropriation. To tolerate such a practice is to
give a license to every disbursing officer to conduct a lending
operation with the use of public funds (Cabello vs. Sandiganbayan, G.R.
No. 93885, May 14, 1991; Meneses vs. Sandiganbayan, G.R. No.
100625 May 20, 1994). Lending loan is an act of ownership. Performing
an act of ownership over a property by one who is not the owner
thereof without authority is misappropriation.

2. Malversation through taking - The concept of taking as an

element of malversation, intentional or passive, is different from that of
misappropriation. According to Luis Reyes, an authority in criminal law,
the public funds or property need not be misappropriated, as the word
take is separated by the word or from the word misappropriation
in Article 217 of the Revised Penal Code.

If the mode of committing malversation is taking, the concept of this

crime is similar to that of theft. In Reuda, Jr., vs. Sandiganbayn, G.R.
No. 129064, November 29, 2000 the Supreme Court, En Banc said that
in Salamera v. Sandiganbayan, G.R. No. 121099, February 17, 1999, we
emphatically declared that the 4th element of malversation requires
that a public officer must take public funds, money or property, and
misappropriate it to his own private use or benefit. There must be
asportation of public funds or property, akin to the taking of anothers
property in theft.

For example, a teller in the office of the city treasurer, who was leaving
the Office with public funds collected by him, is liable for consummated
crime of malversation (The Revised Penal Code by Luis Reyes) through
taking.

In malversation through taking, the taking can be committed by the

accountable officer himself or by another person. If the taking is done
by another person, malversation can be committed by means of dolo
or culpa.

a. Intentional malversation - Malversation through taking is

committed by means of dolo, if the public property was taken by the
accountable officer or by another person with consent of the
accountable officer. In U.S. vs. Ponte, G.R. No. L-5952, October 24,
1911, the municipal treasurer with the help of a janitor and five
policemen took the safe containing money from the municipal treasury.
The treasurer is liable for malversation through taking. The janitor and
policemen although they are not accountable officer, are also liable for
malversation because of conspiracy rule.

b. Passive malversation Malversation through taking is committed

by means of culpa, if the public property or fund was taken by another
person and the accountable officer permitted the taking through
negligence or abandonment. This crime of culpable malversation is
also called passive malversation.

In Office of the Court Administrator v. Soriano, A.M. No. 2864-P. May 16,
1985, it was held that if a deputy clerk of court did not exercise the
strictest supervision on his designated collection clerk, the former
would suffer the consequences of failure to remit the collections by the
latter through negligence. In short, by failing to exercise strict
supervision on the collection clerk, the clerk of court could be liable for
malversation by permitting other person to take public fund through
negligence.

In People vs. Pili, C.A., 53 O.G. 4535, cited in the Revised Penal Code,
Book 2 by Luis Reyes, the postmaster placed the cash, warrants and
checks of the post office in his table drawer instead in his iron safe. On
the night of that day, his drawer was forced open and cash, warrants
and checks were stolen. For failure to place the public funds in the iron
safe, the accused was convicted of malversation for permitting other
person to take the property through negligence.

To be held liable for passive malversation, it is important that there is a

third person, who took the public fund, and the accountable officer
permitted the taking through abandonment or negligence. For
example, if the administrator of Manila Zoo failed to lock the cage of
birds and as a consequence, the birds escaped, he is not liable for
malversation by means of culpa. The birds were not taken by a thief.
They simply escaped from the cage. The accountable officer did not
permit the taking of public properties by another person through
negligence or abandonment since there is no taking that transpired
in the first place.

In Torres vs. People, G.R. No. 175074, August 31, 2011, the Supreme
Court said malversation may thus be committed either through a
positive act of misappropriation of public funds or property of passively
through negligence by allowing another to commit such
misappropriation.

With due respect to the Supreme Court in the Torres case, it is

submitted that there is no passive malversation through
misappropriation. Article 217 of RPC in defining passive malversation
states Any public officer who, by reason of the duties of his office, is
accountable for public funds or property x x x through abandonment or
negligence, shall permit any other person to take such public funds, or
property. The word taking is a concept different from
misappropriation.

But for purpose of the bar exam, it is safe to follow the Torres principle.