SECOND DIVISION

[G.R. No. 136082. May 12, 2000.]

FRANKLIN P. BAUTISTA , petitioner, vs . SANDIGANBAYAN (Third

Division), OFFICE OF THE OMBUDSMAN and PEOPLE OF THE
PHILIPPINES , respondents.

Cesar M. Dureza for petitioner.

The Solicitor General for respondent.

SYNOPSIS

An anonymous, unveri ed and unsigned letter-complaint, allegedly prepared by the

Contractors Association of Davao del Sur and the Good Government Employees of Davao
del Sur, was led with the O ce of the Ombudsman for Mindanao. Herein petitioner
Franklin P. Bautista, incumbent mayor of the Municipality of Malate, Davao del Sur, was
charged with violation of Sec. 3, par. (e), of RA 3019, as amended, otherwise known as the
Anti-Graft and Corrupt Practices Act. The letter-complaint alleged, among others, that
petitioner caused the hiring of one hundred and ninety-two (192) casual employees in the
municipal government for political considerations and that the payment of their honoraria
was charged to the peace and order fund despite meager savings of the municipality. In
the Resolution, the Graft Investigation O cer found a prima facie case for violation of Sec.
3, par. (e) of RA 3019, as amended, against petitioner. The Ombudsman approved the
resolution. Thereafter, an Information for violation of Sec. 3, par. (e) of RA 3019, as
amended, was led against petitioner before the Sandiganbayan. Petitioner led a Motion
to Quash the Information anchored on the ground that the acts charged therein did not
constitute the offense indicated in Sec. 3, par. (e) of RA 3019, as amended, and that more
than one (1) offense was charged in the Information. The Sandiganbayan denied the
motion to quash. Petitioner assailed in this petition the denial of his motion to quash
despite failure of the Ombudsman to properly establish a cause of action. Petitioner
invokes Sec. 4, Rule II of the Rules of Procedure of the Ombudsman which requires that for
purposes of conducting a preliminary investigation the complainant must submit his
a davit and those of his witnesses before respondent can be required to submit his
counter-affidavit and other supporting documents. LLphil

The Supreme Court ruled that despite the Ombudsman's noncompliance with the
a davit requirement, petitioner led his counter-a davit and answered the charges
against him. Hence, having submitted himself to the jurisdiction of the Ombudsman and
having allowed the proceedings to go on until the preliminary investigation was terminated
and the Information led at the Sandiganbayan, petitioner was deemed to have waived
whatever right he may otherwise have to assail the manner in which the preliminary
investigation was conducted. Consequently, petitioner was likewise estopped from
questioning the validity of the Information led before the Sandiganbayan. Indeed, Sec. 3,
par. (e) RA 3019, as amended, provides as one of its elements that the public o cer
should have acted by causing any undue injury to any party, including the government, or by
giving any private party unwarranted bene ts, advantage or preference in the discharge of
his functions. The use of the disjunctive term "or" connotes that either act quali es as a
violation of Sec. 3, par. (e). This does not however, indicate that each mode constitutes a
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 distinct offense, but rather, that an accused may be charged under either mode or under
both. The Court applied the same in this case, hence, the petition was dismissed.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION;

CAN BE HELD ONLY AFTER SUFFICIENT EVIDENCE DERIVED FROM SUBMITTED
AFFIDAVITS FROM COMPLAINANTS AND HIS WITNESSES SHALL HAVE BEEN DULY
GATHERED AND EVALUATED. — The issue has long been laid to rest in Olivas vs. O ce of
the Ombudsman, G.R. No. 102420, 20 December 1994, where the Court explained that
while reports and even raw information obtained from anonymous letters may justify the
initiation of an investigation, this stage of the preliminary investigation can be held only
after su cient evidence, derived from submitted a davits from the complainants and his
witnesses, shall have been duly gathered and evaluated, and only thereafter can the
respondent be required to submit his affidavits and other documents to explain, also under
oath. It is from such a davits and counter-a davits that the Ombudsman can determine
whether there is a probable cause for bringing the case to court.
2. CRIMINAL LAW; VIOLATION OF SEC. 3, PAR. (e), RA 3019 (ANTI-GRAFT AND
CORRUPT PRACTICES ACT); ELEMENTS THEREOF, CONSTRUED. — Sec. 3, par. (e), RA
3019, as amended, provides as one of its elements that the public o cer should have
acted by causing any undue injury to any party, including the government, or by giving any
private party unwarranted bene ts, advantage or preference in the discharge of his
functions. The use of the disjunctive term "or" connotes that either act quali es as a
violation of Sec. 3, par. (e), or as aptly held in Santiago, as two (2) different modes of
committing the offense. This does not however indicate that each mode constitutes a
distinct offense, but rather, that an accused may be charged under either mode or under
both. The use of the phrase "causing undue injury" therein can either be interpreted as
another mode of violating the statute, in addition to the giving of unwarranted bene ts,
advantage and preference to the casuals, or as a consequence of the act of giving
unwarranted bene ts, advantage and preference. Speci cally, for hiring some one hundred
and ninety-two (192) casuals and the charging of their honoraria and salaries to the peace
and order fund, petitioner gave them unwarranted bene ts, advantage and preference and
caused undue injury to the Municipality of Malita; or thereby caused undue injury to the
Municipality of Malita. In either case, the Information will not suffer any defect, as it is clear
that petitioner is charged with violation of Sec. 3, par. (e), of RA 3019, as amended, with
either mode of commission obtaining or with both manners of violation concurring.
3. ID.; ID.; ID.; WHEN EMPLOYEES' CURRENT POSITIONS DO NOT AFFECT THE
SUFFICIENCY OF THE INFORMATION; CASE AT BAR. — Petitioner nds exception in the
term "private party" as used in Sec. 3, par. (e), of RA 3019, as amended, and argues that the
casuals alleged to have been appointed by him and thus recipients of unwarranted
bene ts could not qualify as private parties since they are in actuality public o cers within
the contemplation of Sec. 2, par. (b), of RA 3019, as amended. Citing Philnabank
Employees Association vs. Auditor General, G.R. No. 30137, 25 June 1973, 51 SCRA 315,
petitioner points out that "the employees of a government corporation, regardless of the
latter's functions, are government employees and, therefore, they are not 'private party or
entity'"; and as such, one of the elements constituting the offense under Sec. 3, par. (e), of
RA 3019, as amended, is missing thus warranting the dismissal of the Information. The
term "private party" or "private person" may be used to refer to persons other than those
holding public o ce. However, petitioner is charged with causing the hiring of some one
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 hundred ninety-two (192) casual employees, and the consequent awarding of their
honoraria and salaries taken from the peace and order fund of the municipality. The
reckoning period is before the casual employees' incumbency when they were still private
individuals, and hence, their current positions do not affect the su ciency of the
Information.

DECISION

BELLOSILLO , J : p

This petition seeks to set aside the 13 March 1998 Resolution of the Sandiganbayan
1 denying petitioner's Motion to Quash Crim. Case No. 24276 and its 9 October 1998
Resolution denying reconsideration. The petition also prays for the issuance of a writ of
preliminary injunction and/or temporary restraining order to restrain and enjoin public
respondents from proceeding in any manner with Crim. Case No. 24276 during the
pendency of the petition. cdasia

An anonymous, unveri ed and unsigned letter-complaint dated 20 November 1996

allegedly prepared by the Contractors Association of Davao del Sur and the Good
Government Employees 2 of Davao del Sur initiated this case. It was led with the O ce of
the Ombudsman for Mindanao charging petitioner Franklin P. Bautista, incumbent mayor
of the Municipality of Malita, Davao del Sur, for violation of Sec. 3, par. (e), of RA 3019, as
amended, otherwise known as the Anti-Graft and Corrupt Practices Act. 3 The letter-
complaint alleged, among others, that petitioner caused the hiring of one hundred and
ninety-two (192) casual employees in the municipal government for political
considerations and that the payment of their honoraria and salaries was charged to the
peace and order fund despite meager savings of the municipality. 4
Acting on the letter-complaint, Graft Investigation O cer II (GIO II) Corazon A.
Arancon issued on 16 January 1997 an Order directing respondent Franklin P. Bautista,
petitioner herein, to submit his counter-a davit. 5 In his counter-a davit of 26 February
1997 petitioner, answering the charges against him, claimed that the complaint, which was
unsigned, was ctitious and fabricated as shown by the a davits of Enrique Ponce De
Leon, President of the Contractor's Association of Davao del Sur; 6 Rogelio E. Llanos,
Governor for Davao del Sur; 7 Eduardo M. Masiwel Vice Mayor of Malita, Davao del Sur; 8
Engineer Antonio P. Cayoca, Department of Public Works and Highways, 2nd District,
Davao del Sur; 9 Juanito A. Itorralba, Assistant Provincial Treasurer of Davao del Sur; 1 0
Juan L. de Guzman and Felipe D. Macalinao, 1 1 both teachers, therein attached, which
disclaimed any knowledge of the institution of the complaint nor cause of its ling. He
further argued that the hiring of the one hundred ninety-two (192) casuals and the payment
of their honoraria and wages did not justify the filing of any charge against him.
After due consideration, GIO II Arancon in his Resolution dated 27 May 1997 found a
prima facie case for violation of Sec. 3, par. (e), of RA 3019, as amended, against petitioner
and forwarded the resolution to the Ombudsman for approval.
On 3 October 1997 the Ombudsman approved the resolution. Thereafter, an
Information for violation of Sec. 3, par. (e), of RA 3019, as amended, was led against
petitioner before the Sandiganbayan, docketed as Crim. Case No. 24276, 1 2 which read —

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 That sometime in 1995 or sometime prior thereto, in the Municipality of
Malita, Davao del Sur, and within the jurisdiction of this Honorable Court, the
above-named accused, a high ranking public o cer, being the Mayor,
Municipality of Malita, Davao del Sur, while in the performance of his o cial
functions, taking advantage of his position and committing the offense in relation
to his o ce, with manifest partiality, did then and there willfully, unlawfully and
criminally caused the hiring of some one hundred ninety-two (192) casual
employees in agrant disregard of Secs. 288 and 289 of the Government
Accounting and Auditing Manual (GAAM), the honoraria and salaries of whom
were charged to the peace and order fund and to the project component and other
services activity fund, respectively and which represented 72.5% of the total
personnel services expenditures, thereby giving unwarranted bene ts, advantage
and preference to the said casuals, causing undue injury to the Municipality of
Malita.

On 13 November 1997 petitioner led a Motion to Quash the Information anchored

on the ground that the acts charged therein did not constitute the offense indicated in Sec.
3, par. (e), of RA 3019, as amended, and that more than one (1) offense was charged in the
Information. After the ling of the opposition, the Sandiganbayan denied on 13 March
1998 the Motion to Quash stating that all essential elements of the crime charged were
su ciently alleged in the Information which charged only one offense. On 13 April 1998
petitioner filed a motion for reconsideration but on 9 October 1998 his motion was denied.
Petitioner assails in this petition the denial of his Motion to Quash despite failure of
the Ombudsman to properly establish a cause of action. He asserts that there was no legal
basis for the Ombudsman to conduct a preliminary investigation in Case No. CPL-MIN-96-
180, much less le the Information in Crim. Case No. 24276, as the Ombudsman failed to
direct the complainants to reduce their evidence into a davits before requiring him to
submit his counter-a davit. Petitioner invokes Sec. 4, Rule II, of the Rules of Procedure of
the Ombudsman which requires that for purposes of conducting a preliminary
investigation the complainant must submit his a davit and those of his witnesses before
respondent can be required to submit his counter-a davit and other supporting
documents. 1 3 Conformably with such rule, the Ombudsman should have rst required the
Contractor's Association of Davao del Sur and the Good Government Employees of Davao
del Sur to submit their respective a davits before requiring him as respondent to submit
his counter-a davit, especially since the letter-complaint was unsigned and unveri ed;
hence, there was no valid cause of action against petitioner.
Petitioner cites Olivas v. O ce of the Ombudsman 1 4 where the Court declared that
in preliminary investigation of cases it is incumbent upon the complainants to submit their
evidence in a davit form and it is only after such submission that respondent may be
required to explain and submit his counter-affidavit, also under oath.
This issue has long been laid to rest in Olivas where the Court explained that while
reports and even raw information obtained from anonymous letters may justify the
initiation of an investigation, this stage of the preliminary investigation can be held only
after su cient evidence, derived from submitted a davits from the complainants and his
witnesses, shall have been duly gathered and evaluated, and only thereafter can the
respondent be required to submit his affidavits and other documents to explain, also under
o at h. 1 5 It is from such a davits and counter-a davits that the Ombudsman can
determine whether there is a probable cause for bringing the case to court.
However, despite its wisdom, we must rule that the principle enunciated in Olivas
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 has no bearing in the instant petition. What was assailed therein was the order of the
Ombudsman compelling petitioner Olivas to le his counter-a davit in answer to the
charges against him, he having refused to do so since the order was not accompanied by a
single a davit from the complainants as mandated by law; while in the instant case,
petitioner Bautista had already led his counter-a davit before the Ombudsman and only
questioned the latter’s failure to require the complainants to submit a davits prior to the
submission of his own counter-a davit after the preliminary investigation had ended and
an Information already led before the Sandiganbayan. The issue therefore of requiring the
complainants to submit their a davits before respondent can be obliged to submit his
counter-a davit is moot and academic in light of Bautista’s submission of his counter-
affidavit despite absence of the complainants’ affidavits.
Criminal Case No. 24276 before the Sandiganbayan stemmed from the letter
allegedly sent by the Contractors’ Association of Davao del Sur and the Good Government
Employees of Davao del Sur addressed to the O ce of the Ombudsman for Mindanao. It
may be true that GIO II Arancon in his Order of 16 January 1997 directed herein petitioner
to submit his counter-a davit thereto without requiring the complainants to submit theirs
which were signi cantly necessary because of the unveri ed, unsigned and anonymous
nature of their letter. However, despite the Ombudsman's noncompliance with the a davit
requirement, petitioner led his counter-a davit on 26 February 1997 and answered the
charges against him. Hence, having submitted himself to the jurisdiction of the
Ombudsman and having allowed the proceedings to go on until the preliminary
investigation was terminated and the Information led at the Sandiganbayan, petitioner is
deemed to have waived whatever right he may otherwise have to assail the manner in
which the preliminary investigation was conducted. Consequently, petitioner is likewise
estopped from questioning the validity of the Information led before the Sandiganbayan.
Cdpr

Petitioner likewise avers that the Sandiganbayan gravely abused its discretion in
denying his Motion to Quash the Information as there were at least two (2) offenses
charged — the giving of unwarranted bene ts, advantage and preference to the casual
employees in question, and causing undue injury to the Municipality of Malita. Petitioner
invokes Santiago v. Garchitorena 1 6 where it was held that there were two (2) ways of
violating Sec. 3, par. (e), of RA 3019, namely, (a) by causing undue injury to any party,
including the Government, and (b) by giving any private party any unwarranted bene t,
advantage or preference, and as such, he argues that each constitutes two (2) distinct
offenses that should be charged in separate informations.
Indeed, Sec. 3, par. (e), RA 3019, as amended, provides as one of its elements that
the public o cer should have acted by causing any undue injury to any party, including the
government, or by giving any private party unwarranted bene ts, advantage or preference
in the discharge of his functions. 1 7 The use of the disjunctive term "or" connotes that
either act quali es as a violation of Sec. 3, par. (e), or as aptly held in Santiago, as two (2)
different modes of committing the offense. This does not however indicate that each
mode constitutes a distinct offense, but rather, that an accused may be charged under
either mode or under both.
I n Santiago petitioner therein assailed the failure of respondent to include the
phrase "causing of undue injury to any party, including the Government" in the amended
informations led against her. Refuting the claim, the Court cited the minute resolution in
Uy v. Sandiganbayan 1 8 and clari ed that the "act of giving any private party any
unwarranted bene t, advantage or preference" is not an indispensable element of the
offense of "causing any undue injury to any party," although there maybe instances where
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 both elements concur. Thus, in Pareño v. Sandiganbayan 1 9 the information charged the
public o cers with "willfully and unlawfully causing undue injury to the Government and
giving unwarranted bene ts to Tanduay Distillery, Inc." by failing to verify and act on the
validity and/or veracity of the claim for tax credit filed by the corporation before the BIR.
In Pilapil v. Sandiganbayan 2 0 petitioner Pilapil was only charged with having "willfully
caused undue injury to the Municipality of Tigaon, Camarines Sur, when he failed to deliver
the ambulance received by him on behalf of the municipality in a Deed of Donation
executed by the Philippine Charity Sweepstakes O ce in its favor, to the prejudice and
damage of the municipal government."
Likewise, in Diaz v. Sandiganbayan 2 1 the PCGG Commissioners as public o cers
were charged only with having given Enrique Razon, Jr., a stockholder or o cer of the
sequestered corporation Metro Port, unwarranted bene ts and/or advantage by the
approval of his loan application for P5,000,000.00 belonging to the same sequestered
corporation.
By analogy, Gallego v. Sandiganbayan 2 2 nds application in the instant case. There,
petitioners claimed that the Information charged the accused with three (3) distinct
offenses, to wit: (a) the giving of "unwarranted" bene ts through manifest partiality; (b) the
giving of "unwarranted" bene ts through evident bad faith; and, (c) the giving of
"unwarranted" bene ts through gross inexcusable negligence while in the discharge of
their o cial and/or administrative functions; and thus moved for the quashal of the
Information. The Sandiganbayan denied the motion to quash and held that the phrases
"manifest partiality," "evident bad faith" and "gross inexcusable negligence" merely
described the different modes by which the offense penalized in Sec. 3, par. (e), of RA
3019, as amended, could be committed, and the use of all these phrases in the same
Information did not mean that the indictment charged three (3) distinct offenses.
In the instant case, the Information against petitioner read in part —
. . . unlawfully and criminally caused the hiring of some one hundred
ninety-two (192) casual employees in agrant disregard of Secs. 288 and 289 of
the Government Accounting and Auditing Manual (GAAM), the honoraria and
salaries of whom were charged to the peace and order fund and to the project
component and other services activity fund, respectively, and which represented
72.5%, of the total personnel services expenditures, thereby giving unwarranted
bene ts, advantage and preference to the said casuals, causing undue injury to
the Municipality of Malita.
The use of the phrase "causing undue injury" therein can either be interpreted as
another mode of violating the statute, in addition to the giving of unwarranted bene ts,
advantage and preference to the casuals, o r as a consequence of the act of giving
unwarranted bene ts, advantage and preference. Speci cally, for hiring some one hundred
and ninety-two (192) casuals and the charging of their honoraria and salaries to the peace
and order fund, petitioner gave them unwarranted bene ts, advantage and preference and
caused undue injury to the Municipality of Malita; or thereby caused undue injury to the
Municipality of Malita. In either case, the Information will not suffer any defect, as it is clear
that petitioner is charged with violation of Sec. 3, par. (e), of RA 3019, as amended, with
either mode of commission obtaining or with both manners of violation concurring.
Finally, petitioner nds exception in the term "private party" as used in Sec. 3, par. (e),
of RA 3019, as amended, and argues that the casuals alleged to have been appointed by
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 him and thus recipients of unwarranted bene ts could not qualify as private parties since
they are in actuality public o cers within the contemplation of Sec. 2, par. (b), of RA 3019,
as amended. Citing Philnabank Employees Association v. Auditor General, 2 3 petitioner
points out that "the employees of a government corporation, regardless of the latter's
functions, are government employees and, therefore, they are not 'private party or entity''';
and as such, one of the elements constituting the offense under Sec. 3, par. (e), of RA
3019, as amended, is missing thus warranting the dismissal of the Information.
The term "private party" or "private person" may be used to refer to persons other
than those holding public o ce. 2 4 However, petitioner is charged with causing the hiring
of some one hundred ninety-two (192) casual employees, and the consequent awarding of
their honoraria and salaries taken from the peace and order fund of the municipality. The
reckoning period is before the casual employees' incumbency when they were still private
individuals, and hence, their current positions do not affect the su ciency of the
Information.
WHEREFORE, the petition is DISMISSED. The Resolution of the Sandiganbayan of 13
March 1998 denying petitioner Franklin P. Bautista's Motion to Quash in Crim. Case No.
24276 and its Resolution of 9 October 1998 denying reconsideration are AFFIRMED.
Consequently, public respondents Sandiganbayan (Third Division) and the O ce of the
Ombudsman are directed to proceed with the hearing and trial of Crim. Case No. 24276
against petitioner until terminated. dctai

SO ORDERED.
Mendoza, Quisumbing and Buena, JJ., concur.
De Leon, Jr., J., is on leave.

Footnotes
1. Resolution of the Sandiganbayan, Third Division, with Justice Cipriano A. Del Rosario as
Chairman and Justice German G. Lee, Jr. and Justice Teresita Leonardo De Castro as
Members.

2. The Good Government Employees were listed in the letter as follows: Provincial
Treasurer’s Office Field Personnel, Provincial Accountant’s Office (Field Personnel),
Provincial Auditor’s Field Personnel, DPWH Second Engineering District of Davao del Sur,
Malita Treasurer/Accounting Personnel, and the Sangguniang Bayan of Malita.
3. Rollo, p. 25.
4. The unsigned letter accused petitioner Franklin P. Bautista of the following offenses: (a)
per audit report prepared by Auditor Rodolfo de Vera, signed and approved by Provincial
Auditor Mariano Kintanar, the honorarium paid to 192 casual employees which
amounted to P5,438,735.80 could have been avoided had the agency properly planned,
regulated and controlled its personnel requirement; and, (b) illegal disbursements and
fictitious and overpriced payment of supplies and secondhand spare parts.
5. Docketed as Case No. CPL-MIN-96-180 in the Office of the Ombudsman, Mindanao, and
Case No. OMB-3-96-2900 in the Office of Ombudsman, Manila.
6. Rollo, p. 33.
7. Id., p. 34.
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 8. Id., p. 35.
9. Id., p. 36.
10. Id., p. 37.
11. Id., p. 38.
12. GIO II Corazon A. Arancon prepared and signed the Information against petitioner
Bautista as early as 26 May 1997 or even before the issuance of the resolution.
13. Sec. 4. Procedure — The preliminary investigation of cases falling under the jurisdiction
of the Sandiganbayan and Regional Trial Courts shall be conducted in the manner
prescribed in Sec. 3, Rule 112 of the Rules of Court, subject to the following provisions:
(a) if the complaint is not under oath or is based only on official reports, the
investigating officer shall require the complainant or supporting witnesses to execute
affidavits to substantiate the complaints; (b) After such affidavits have been secured.
The investigating officer shall issue an order, attaching thereto a copy of the affidavits
and other supporting documents, direct the respondent to submit, within ten (10) days
from receipt thereof, his counter-affidavits and controverting evidence with proof of
service thereof on the complainant. The complainant may file reply affidavits within ten
(10) days after service of the counter-affidavits.
14. G.R. No. 102420, 20 December 1994, 239 SCRA 283.

15. Ibid.
16. G.R. No. 109266, 2 December 1993.
17. The elements of Sec. 3 (e) of R.A. 3019 are as follows: (a) the offender is a public
officer; (b) the act was done in the discharge of the public officer’s official,
administrative or judicial functions; (c) the act was done through manifest partiality,
evident bad faith or gross inexcusable negligence; and, (d) the public officer caused any
undue injury to any party, including the Government, or gave any private party any
unwarranted benefits, advantage or preference.
18. G.R. No. 100334, 5 December 1991.
19. G.R. Nos. 107119-20 and 108037-38, 17 April 1996, 256 SCRA 242.
20. G.R. No. 101978, 7 April 1993, 221 SCRA 349.
21. G.R. Nos. 101202 and 102554, 8 March 1993, 219 SCRA 675.

22. G.R. No. 57841, 30 July 1982, 115 SCRA 793.

23. G.R. No. 30137, 25 June 1973, 51 SCRA 315.
24. Black’s Law Dictionary, p. 1196.

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