Case Title: JOEL NEMENSIO M. MACASIL,* PETITIONER, VS.
FRAUD AUDIT AND
INVESTIGATION OFFICE (FAIO) - COMMISSION ON AUDIT, PUBLIC ASSISTANCE AND CORRUPTION PREVENTION OFFICE OMBUDSMAN - VISAYAS REGIONAL OFFICE NO. VIII, AND OFFICE OF THE OMBUDSMAN (VISAYAS), RESPONDENTS. Case Number: G.R. No. 226898
Date: May 11, 2021
Division or EN BANC: EN BANC
Facts of the Case:
On February 7, 2005, the Commission on Audit Regional Office No. VIII
investigated the infrastructure projects of the Tacloban City Sub-District Engineering Office for calendar years 2003 and 2004. Based on the audit investigation, the review of the projects cannot be completed due to delay and non-submission of contract documents. Accordingly, the Regional Legal and Adjudication Office (RLAO) issued notices of suspension to the responsible officers, directing them to submit the required documents. Upon compliance, the RLAO reviewed the documents and discovered that several projects bore identical, if not exact, descriptions. The RLAO considered this as red flag and recommended for an in-depth audit investigation. Later, the Fraud Audit and Investigation Office (FAIO) examined the transactions and found that 32 infrastructure projects did not comply with approved plans and were overpaid due to bloated accomplishment reports,overstated resulting in overpayment in the amount of P52,178,645.18. Moreover, the reported actual accomplishments for two projects amounting to P 1,972,962.00 were not properly identified during the ocular inspection; while one project was found out not in accordance with DPWH Highway Design and Standards. On the basis of the FAIO's findings, the Public Assistance and Corruption Prevention Office Fact-Finding Unit filed a Complaint[5] against Materials Engineer Joel Nemensio M. Macasil (Macasil) and other officials for violation of Section 3(e) of Republic Act (RA) No. 3019 or the Anti-Graft and Corrupt Practices Act and Falsification under Article 171 of the Revised Penal Code (RPC) before the Office of the Deputy Ombudsman Visayas. Allegedly, Macasil certified that the Statements of Work Accomplished (SWA) for 32 infrastructure projects were in accordance with the approved plans and specifications, despite the fact that the reported accomplishments were overstated/bloated, and that the projects were overpaid. Macasil denied the charges and averred that, as a Materials Engineer, his work revolves around the quality control aspect of the infrastructure projects, such as quality control testing, sampling, and pre-testing of construction materials. On the other hand, the FAIO inspection reports focused on the quantity aspect. Specifically, Engr. Owen Kim S. Monter, a member of the investigating team, stated that "[t]he conduct of inspection was limited only to the existence of visible portion of the project as physically examined and validated by the undersigned"[7] and that the "inspection was focused on the verification of [the] quantity."[8] Moreover, it is the Project Engineer who certifies the SWAs. Macasil also disavowed any participation in the alleged overpayment of the projects as he was not part of the team that recommended payment of the contract price to the contractors. He also did not sign any disbursement voucher. Lastly, he was not included in the fact-finding phase of the investigation, and was not named in the notice of suspension. He only came to know of the investigation and the adverse findings when he received a copy of the complaint. On May 8, 2015, the Office of the Ombudsman (Visayas) found probable cause to indict Macasil for 23 counts of violation of Section 3(e) of RA No. 3019, and 26 counts of Falsification of Public Documents under paragraph 4, Article 171 of the RPC, for participation in signing in each of the SWAs and DV for the 34 infrastructure projects per Finding No. 3 of the FAIO Report No. 2011-02 that are considered by complainant FAIO as either bloated or overstated as regards the extent of the project accomplishment. Moreover, of the 49 infrastructure projects subject of the case, 31 projects were shown to be irregular and had sufficient evidence showing Violation of Section 3(e) of RA 3019, as amended. 34 projects were likewise shown to be irregular and had sufficient evidence for Falsification of Public Document under Article 171, paragraph 4 of the Revised Penal Code. A Motion for Reconsideration was filed but the same was denied. A Petition for Certiorari was filed before the Supreme Court imputing grave abuse of discretion on the part of the Ombudsman (Visayas) in finding probable cause for violation of Section 3(e) of RA No. 3019, as amended, and paragraph 4, Article 171 of the RPC.
RULING: The petition is meritorious. Considering that Macasil is a Materials Engineer of
the Department of Public Works and Highways (DPWH) of Tacloban City and is performing governmental functions for the benefit of the public. Foremost, the SWAs attached to the records would reveal that Macasil was not the officer who certified the percentage of completion of the infrastructure projects and their compliance with the approved plans and specifications. The SWAs contained three certifications signed by the contractor, the project engineer, and the materials engineer. The foregoing notwithstanding, it must be kept in mind that the overall supervision of the project shall be the responsibility of the Project Engineer. Macasil's name appears on the third certification which guarantees the quality of the materials used, and the fact that such materials underwent and passed the required tests. Pertinently, the DPWH Staffing Manual enumerates the duties and responsibilities of a Materials Engineer. Similarly, there is no probable cause to charge Macasil with falsification under paragraph 4,[30] Article 171, of the RPC. The Ombudsman's finding that Macasil made an untruthful statement when he certified in the SWAs that the reported and paid accomplishments of the infrastructure projects were in accordance with the approved plans and specifications is not moored on evidence. As intimated earlier, Macasil did not certify on the work accomplished for the infrastructure projects nor was he the responsible officer to make such certification. To stress, Macasil is a Materials Engineer who only certified on the quality of the materials incorporated into the projects, and their compliance with the requirements of the DPWH Standard Specifications for Highways, Bridges, Airports, and the schedule of Minimum Testing Requirements. More importantly, criminal intent must be present in felonies committed by means of dolo, such as falsification. However, there was nothing willful or felonious in Macasil's actions that satisfies the requisite criminal intent or mens rea. In sum, there is no prima facie case to support a finding of probable cause for violation of the Anti-Graft and Corrupt Practices Act and Falsification, it bears emphasis that the primary objective of a preliminary investigation is to free, respondent from the inconvenience, ignominy, and stress of defending himself in the course of a formal trial. It also protects the state from the burden of the unnecessary expense and effort in prosecuting alleged offenses, and in holding trials arising from false, frivolous, or groundless charges.[33] Thus, when at the outset the existence of probable cause to form a sufficient belief as to the guilt of the accused cannot be ascertained, the prosecution must desist from inflicting on any person the trauma of going through a trial. FOR THESE REASONS, the petition is GRANTED. The Consolidated Resolution dated May 8, 2015 of the Office of the Ombudsman (Visayas) in OMB-V-C-13-0355 and OMB-V-C-14-0012, finding probable cause against Joel Nemensio M. Macasil for violation of Section 3(e) of Republic Act No. 3019 and paragraph 4, Article 171 of the Revised Penal Code is ANNULLED and SET ASIDE.