FIRST DIVISION

[G.R. Nos. 108135-36. August 14, 2000.]

POTENCIANA M. EVANGELISTA , petitioner, vs . THE PEOPLE OF THE

PHILIPPINES and THE HONORABLE SANDIGANBAYAN, (FIRST
DIVISION) , respondents.

Abello Concepcion Regala & Cruz for petitioner.

The Solicitor General for respondents.

SYNOPSIS

Petitioner appealed from her conviction for violation of Section 3 (e) of the Anti-
Graft and Corrupt Practices Act due to her issuance of a certi cation which failed to
identify with certainty what the TNCs (Tax Numeric Code) stand for and the taxes paid by
Tanduay, which in turn became the basis for the erroneous grant of Tanduay's application
for tax credit.
The Supreme Court acquitted the petitioner on appeal, ruling her issuance of the
certi cation did not constitute corrupt practice as de ned in Section 3 (e) of R.A. 3019.
Petitioner did not cause undue injury to the government nor did she give unwarranted
bene ts to Tanduay. These are elements of the offense charged. Rather, her certi cation
showed the contrary, namely, that Tanduay was not entitled to the tax credit since no tax
payment was classi ed therein as falling under TNC No. 3023-2001, the code for ad
valoremtaxes. The import of this is that Tanduay did not make any ad valorem payment,
and, therefore, it is not entitled to any tax credit. cCSEaA

Petitioner should not be required to describe in words the kind of tax for which each
TNC used stands for. Employees of the BIR are expected to know what the TNCs stand
for. Finally, petitioner's constitutional right to be informed of the nature and cause of the
accusation against her was violated because she was convicted for acts different from
those alleged in the information.

SYLLABUS

1. CRIMINAL LAW; SEC. 3 (E) OF R.A. NO. 3019, OTHERWISE KNOWN AS THE ANTI-
GRAFT AND CORRUPT PRACTICES ACT; ELEMENTS THEREOF; NOT PRESENT IN CASE AT
BAR. — Petitioner was charged with violation of Section 3 (e) of Republic Act No. 3019, the
Anti-Graft and Practices Act. . . . The elements of the offense are: (1) that the accused are
public o cers or private persons charged in conspiracy with them; (2) that said public
o cers commit the prohibited acts during the performance of their o cial duties or in
relation to their public positions; (3) that they cause undue injury to any party, whether the
Government or a private party; (4) that such injury is caused by giving unwarranted
bene ts, advantage or preference to such parties; and (5) that the public o cers have
acted with manifest partiality, evident bad faith or gross inexcusable negligence. . . . In the
instant case, we nd that petitioner, in issuing the certi cation, did not cause any undue
injury to the Government. She also did not give unwarranted bene ts, advantage or
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 preference to Tanduay. Neither did petitioner display manifest partiality to Tanduay nor act
with evident bad faith or gross inexcusable negligence. Quite the contrary, petitioner's
certi cation was against the interest of Tanduay. It did not advocate the grant of its
application for tax credit. The certi cation can even be read as a recommendation of
denial of the application.
2. ID.; CRIMINAL LIABILITY; APPLICABILITY OF THE MAXIM NULLUM CRIMEN
NULLA POENA SINE LEGE IN CASE AT BAR. — We nd that petitioner's omission to
indicate what kind of taxes TNC Nos. 3011-0001 and 0000-0000 stand for was not a
criminal act. Applicable here is the familiar maxim in criminal law: Nullum crimen nulla
poena sine lege. There is no crime where there is no law punishing it. . . . Employees of the
BIR were expected to know what the TNCs stand for. If they do not, there is a "Handbook
of Tax Numeric Code of Revenue Sources" which they can consult. With this, petitioner
should not be required to describe in words the kinds of tax for which each TNC used
stands for. Precisely, the purpose of introducing the use of tax numeric codes in the
Bureau was to do away with these descriptive words, in order to expedite and facilitate
communications among the different divisions therein.
3. CONSTITUTIONAL LAW; RIGHTS OF THE ACCUSED; RIGHT TO BE INFORMED OF
THE NATURE AND CAUSE OF ACCUSATION AGAINST HIM; CONVICTION FOR ACTS
DIFFERENT FROM THOSE ALLEGED IN THE INFORMATION, A VIOLATION THEREOF; CASE
AT BAR. — It is well-settled that an accused cannot be convicted of an offense unless it is
clearly charged in the complaint or information. Constitutionally, he has a right to be
informed of the nature and cause of the accusation against him. To convict him of an
offense other than that charged in the complaint or information would be a violation of this
constitutional right. In the case at bar, we nd merit in petitioner's contention that the acts
for which she was convicted are different from those alleged in the Information. TEDHaA

RESOLUTION

YNARES-SANTIAGO , J : p

On September 30, 1999, we rendered a Decision in this case acquitting petitioner of

the charge of violation of then Section 268 (4) of the National Internal Revenue Code 1 but
a rming her conviction for violation of Republic Act No. 3019, Section 3 (e), 2 thus
imposing on her an indeterminate sentence of imprisonment for six (6) years and one
month as minimum to twelve (12) years as maximum, and the penalty of perpetual
disqualification from public office.
The basic facts are briefly restated as follows:
On September 17, 1987, Tanduay Distillery, Inc. led with the Bureau of Internal
Revenue an application for tax credit in the amount of P180,701,682.00, for allegedly
erroneous payments of ad valorem taxes from January 1, 1986 to August 31, 1987.
Tanduay claimed that it is a recti er of alcohol and other spirits, which per previous ruling
of the BIR is only liable to pay speci c taxes and not ad valorem taxes. Upon receipt of the
application, Aquilino Larin of the Speci c Tax O ce sent a memorandum to the Revenue
Accounting Division (RAD), headed by petitioner, requesting the said o ce to check and
verify whether the amounts claimed by Tanduay were actually paid to the BIR as ad
valorem taxes. Larin's memorandum was received by the Revenue Administrative Section
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 (RAS), a subordinate o ce of the RAD. After making the necessary veri cation, the RAS
prepared a certi cation in the form of a 1st Indorsement to the Speci c Tax O ce, dated
September 25, 1987, which was signed by petitioner as RAD chief.
The 1st Indorsement states that Tanduay made tax payments classi ed under Tax
Numeric Code (TNC) 3011-0001 totalling P102,519,100.00 and payments classi ed under
TNC 0000-0000 totalling P78,182,582.00. Meanwhile, Teodoro Pareño, head of the Tax
and Alcohol Division, certi ed to Justino Galban, Jr., Head of the Compounders, Recti ers
and Repackers Section, that Tanduay was a recti er not liable for ad valorem tax. Pareño
recommended to Larin that the application for tax credit be given due course. Hence, Larin
recommended that Tanduay's claim be approved, on the basis of which Deputy
Commissioner Eufracio D. Santos signed Tax Credit Memo No. 5177 in the amount of
P180,701,682.00.
Sometime thereafter, a certain Ruperto Lim wrote a letter-complaint to then BIR
Commissioner Bienvenido Tan, Jr. alleging that the grant of Tax Credit Memo No. 5177
was irregular and anomalous. Based on this, Larin, Pareño, Galban and petitioner
Evangelista were charged before the Sandiganbayan with violation of Section 268 (4) of
the National Internal Revenue Code and of Section 3 (e) of R.A. 3019, the Anti-Graft and
Corrupt Practices Act. Larin, Pareño and petitioner were later convicted of both crimes,
while Galban was acquitted inasmuch as his only participation in the processing of
Tanduay's application was the preparation of the memorandum con rming that Tanduay
was a rectifier.
The three accused led separate petitions for review. Pareño's and Larin's petitions
were consolidated and, in a decision dated April 17, 1996, both were acquitted by this
Court in Criminal Cases Nos. 14208 and 14209. 3 In this petition, on the other hand, we
acquitted petitioner in Criminal Case No. 14208, for violation of Section 268 (4) of the
NIRC. However, we found petitioner guilty of gross negligence in issuing a certi cation
containing TNCs which she did not know the meaning of and which, in turn, became the
basis of the Bureau's grant of Tanduay's application for tax credit. Thus, we a rmed
petitioner's conviction in Criminal Case No. 14209, i.e., for violation of Section 3 (e) of the
Anti-Graft and Corrupt Practices Act. aSITDC

Petitioner seasonably led a Motion for Reconsideration, 4 wherein she asserts that
there was nothing false in her certi cation inasmuch as she did not endorse therein
approval of the application for tax credit. Rather, her certi cation showed the contrary,
namely, that Tanduay was not entitled to the tax credit since there was no proof that it paid
ad valorem taxes. Petitioner also claims that she was neither afforded due process nor
informed of the nature and cause of the accusation against her. She was found guilty of an
offense different from that alleged in the information; consequently, she was unable to
properly defend herself from the crime for which she was convicted.
The Information against petitioner and her co-accused in Criminal Case No. 14209
alleges in ne that they caused undue injury to the Government and gave unwarranted
bene ts to Tanduay when they endorsed approval of the claim for tax credit by preparing,
signing and submitting false memoranda, certi cation and/or o cial communications
stating that Tanduay paid ad valorem taxes when it was not liable for such because its
products are distilled spirits on which speci c taxes are paid, by reason of which false
memoranda, certi cation and/or o cial communications the BIR approved the application
for tax credit, thus defrauding the Government of the sum of P107,087,394.80,
representing the difference between the amount claimed as tax credit and the amount of
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 ad valorem taxes paid by Tanduay to the BIR. 5 According to petitioner, instead of
convicting her of the acts described in the Information, she was convicted of issuing the
certi cation without identifying the kinds of tax for which the TNCs stand and without
indicating whether Tanduay was really entitled to tax credit or not.
The Solicitor General led his Comment 6 wherein he joined petitioner's cause and
prayed that the motion for reconsideration be granted. In hindsight, even the Solicitor
General's comment on the petition consisted of a "Manifestation and Motion in lieu of
Comment," 7 where he recommended that petitioner be acquitted of the two charges
against her.
We find that the Motion for Reconsideration is well-taken.
After a careful re-examination of the records of this case, it would appear that the
certi cation made by petitioner in her 1st Indorsement was not favorable to Tanduay's
application for tax credit. Far from it, petitioner's certi cation meant that there were no
payments of ad valorem taxes by Tanduay in the records and hence, it was not entitled to
tax credit. In other words, the certi cation was against the grant of Tanduay's application
for tax credit.
It has been established that the BIR adopted tax numeric codes (TNCs) to classify
taxes according to their kinds and rates, in order to facilitate the preparation of statistical
and other management reports, the improvement of revenue accounting and the
production of tax data essential to management planning and decision-making. These
codes include TNC No. 3011-0001 for speci c tax on domestic distilled spirits, TNC No.
3023-2001 for ad valorem tax on compounded liquors, and TNC No. 0000-0000 for
unclassified taxes.
Petitioner's 1st Indorsement dated September 25, 1987 lists down the con rmation
receipts covering tax payments by Tanduay for the period January 1, 1986 to August 31,
1987, during which Tanduay alleges that it made erroneous ad valorem tax payments,
classi ed according to TNC numbers. The tax payments therein are described only as
falling under TNC No. 3011-0001, i.e., speci c tax, and TNC No. 0000-0000, i.e.,
unclassi ed taxes. There are no tax payments classi ed as falling under TNC No. 3023-
2001, the code for ad valorem taxes. The import of this, simply, is that Tanduay did not
make any ad valorem tax payments during the said period and is, therefore, not entitled to
any tax credit.
Further, petitioner contends that she was convicted of a supposed crime not
punishable by law. 8 She was charged with violation of Section 3 (e) of Republic Act No.
3019, the Anti-Graft and Corrupt Practices Act, which states:
SEC. 3. Corrupt practices of public o cers . — In addition to acts or
omissions of public o cers already penalized by existing law, the following shall
constitute corrupt practices of any public o cer and are hereby declared to be
unlawful:

xxx xxx xxx.

(e) Causing any undue injury to any party, including the Government, or
giving any private party any unwarranted bene ts, advantage or preference in the
discharge of his o cial, judicial or administrative functions through manifest
partiality, evident bad faith or gross inexcusable negligence. This provision shall
apply to o cers and employees of o ces or government corporations charged
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 with the grant of licenses or permits or other concessions.
xxx xxx xxx.

The elements of the offense are: (1) that the accused are public o cers or private
persons charged in conspiracy with them; (2) that said public o cers commit the
prohibited acts during the performance of their o cial duties or in relation to their public
positions; (3) that they cause undue injury to any party, whether the Government or a
private party; (4) that such injury is caused by giving unwarranted bene ts, advantage or
preference to such parties; and (5) that the public o cers have acted with manifest
partiality, evident bad faith or gross inexcusable negligence. 9
R.A. 3019, Section 3, paragraph (e), 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 Section 3, paragraph (e), or as aptly held in
Santiago, 1 0 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. 1 1
In the instant case, we nd that petitioner, in issuing the certi cation, did not cause
any undue injury to the Government. She also did not give unwarranted bene ts, advantage
or preference to Tanduay. Neither did petitioner display manifest partiality to Tanduay nor
act with evident bad faith or gross inexcusable negligence. Quite the contrary, petitioner's
certi cation was against the interest of Tanduay. It did not advocate the grant of its
application for tax credit. The certi cation can even be read as a recommendation of
denial of the application.
Petitioner further argues that her conviction was merely based on her alleged failure
to identify with certainty in her certi cation the kinds of taxes paid by Tanduay and to
indicate what the TNCs stand for, which acts were different from those described in the
Information under which she was charged. This, she claims, violated her constitutional
right to due process and to be informed of the nature and cause of the accusation against
her.
It is well-settled that an accused cannot be convicted of an offense unless it is
clearly charged in the complaint or information. Constitutionally, he has a right to be
informed of the nature and cause of the accusation against him. To convict him of an
offense other than that charged in the complaint or information would be a violation of this
constitutional right. 1 2 In the case at bar, we nd merit in petitioner's contention that the
acts for which she was convicted are different from those alleged in the Information. More
importantly, as we have discussed above, petitioner's act of issuing the certi cation did
not constitute corrupt practices as defined in Section 3 (e) of R.A. 3019. AcSHCD

Employees of the BIR were expected to know what the TNCs stand for. If they do
not, there is a "Handbook of Tax Numeric Code of Revenue Sources" which they can
consult. With this, petitioner should not be required to describe in words the kinds of tax
for which each TNC used stands for. Precisely, the purpose of introducing the use of tax
numeric codes in the Bureau was to do away with these descriptive words, in order to
expedite and facilitate communications among the different divisions therein. We nd that
petitioner's omission to indicate what kind of taxes TNC Nos. 3011-0001 and 0000-0000
stand for was not a criminal act. Applicable here is the familiar maxim in criminal law:
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 Nullum crimen nulla poena sine lege. There is no crime where there is no law punishing it.
On the whole, therefore, we nd that petitioner was not guilty of any criminal
offense. The prosecution's evidence failed to establish that petitioner committed the acts
described in the Information which constitute corrupt practices. Her conviction must,
therefore, be set aside. For conviction must rest no less than on hard evidence showing
that the accused, with moral certainty, is guilty of the crime charged. Short of these
constitutional mandate and statutory safeguard — that a person is presumed innocent
until the contrary is proved the Court is then left without discretion and is duty bound to
render a judgment of acquittal. 1 3
WHEREFORE, the Motion for Reconsideration is GRANTED. This Court's Decision
dated September 30, 1999 is RECONSIDERED and SET ASIDE. Petitioner is ACQUITTED of
the charge against her.
SO ORDERED.
Davide, Jr., C.J., Puno, Kapunan, and Pardo, JJ., concur.

Footnotes
1. Criminal Case No. 14208, Sandiganbayan, First Division.
2. Criminal Case No. 14209, Sandiganbayan, First Division.
3. Pareño v. Sandiganbayan , G.R. Nos. 107119-20, Larin v. Sandiganbayan , G.R. Nos. 108037-
38, April 17, 1996, 256 SCRA 242.
4. Rollo, pp. 500-532.
5. Rollo, pp. 67-68.

6. Rollo, pp. 599-609.

7. Rollo, pp. 267-320.
8. Rollo, p. 513.
9. Ingco v. Sandiganbayan, 272 SCRA 563, 574 (1997); citing Medija, Jr. v. Sandiganbayan, 218
SCRA 219 (1993); Ponce de Leon v. Sandiganbayan, 186 SCRA 745 (1990).
10. Santiago v. Garchitorena, 228 SCRA 214 (1993).
11. Bautista v. Sandiganbayan, G.R. No. 136082, May 12, 2000.

12. People v. Ortega , 276 SCRA 166, 186 (1997); citing People v. Guevarra , 179 SCRA 740, 751,
December 4, 1989, Matilde, Jr. v. Jabson , 68 SCRA 456, 461, December 29, 1975 and
U.S. v. Ocampo, 23 Phil. 396 (1912).
13. People v. Legaspi, G.R. No. 117802, April 27, 2000.

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