GR 156427; (January, 2006) (Digest)
G.R. No. 156427 ; January 20, 2006
AMANDO TETANGCO, Petitioner, vs. THE HON. OMBUDSMAN and MAYOR JOSE L. ATIENZA, JR., Respondents.
FACTS
Petitioner Amando Tetangco filed a complaint before the Office of the Ombudsman against Mayor Jose L. Atienza, Jr. for violation of Article 220 of the Revised Penal Code (Illegal Use of Public Funds or Technical Malversation). The complaint alleged that on January 26, 2001, Mayor Atienza disbursed public funds as cash assistance to the chairman and tanods of Barangay 105, Zone 8, District I, Manila, and subsequently refunded the total amount on March 5, 2001, because the disbursement was not a lawful expense. The mayor, in his defense, denied any illegality, asserting the expenses were lawful, supported by vouchers, and had undergone prior audit. He also sought dismissal on grounds of lack of jurisdiction, forum-shopping, and absence of a verification and certificate of non-forum shopping in the complaint.
The Investigating Officer recommended the complaint’s dismissal for lack of evidence and merit, a recommendation adopted by the Ombudsman. Tetangco’s motion for reconsideration was denied. He then filed this petition for certiorari, arguing the Ombudsman committed grave abuse of discretion in dismissing the complaint despite an alleged prima facie case, and that the act should at least constitute a violation of the Anti-Graft and Corrupt Practices Act.
ISSUE
Did the Ombudsman commit grave abuse of discretion in dismissing the criminal complaint against Mayor Atienza for lack of probable cause?
RULING
No, the Ombudsman did not commit grave abuse of discretion. The Supreme Court reiterated the settled policy of non-interference with the Ombudsman’s exercise of its investigatory and prosecutorial powers, including its determination of probable cause, unless such exercise is tainted with grave abuse of discretion. Grave abuse of discretion exists only when the power is exercised in an arbitrary, capricious, whimsical, or despotic manner so patent as to amount to an evasion of a positive duty.
The Court found no such abuse in this case. For a charge of technical malversation under Article 220 of the Revised Penal Code to prosper, it must be shown that: (1) the offender is an accountable public officer; (2) he applies public funds or property under his administration to some public use; and (3) that public use is different from the purpose for which the funds were originally appropriated by law or ordinance. The petitioner’s complaint merely alleged that the disbursement was unauthorized but failed to cite any specific law or ordinance providing for the original appropriation from which the funds were diverted or misapplied. This failure to establish a crucial element of the crime meant the complaint was devoid of merit, justifying its outright dismissal by the Ombudsman pursuant to its own procedural rules. Consequently, the Ombudsman’s action was neither arbitrary nor capricious. The petition was dismissed for lack of merit.