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ADMINISTRATIVE ORDERS
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ADMINISTRATIVE ORDER NO. 159 -
DISMISSING 3RD ASSISTANT CITY FISCAL MATEO P. FRANCISCO OF ZAMBOANGA
CITY
This is an administrative case against 3rd
Assistant City Fiscal Mateo P. Francisco of Zamboanga City for
Dishonesty.
The factual antecedents of the case are as follows:
On September 22, 1986, a certain Emilio D. Garay issued in favor of one
Romeo Amar a check (BPI Check No. 41243), post-dated October 7, 1986,
in the amount of P14,960.00 representing the amount of loan obtained by
the former from the latter. When the check was about to mature, Garay
requested Amar not to encash it to enable him (Garay) to raise funds to
cover the check. Amar acceded to the request. Thereafter, on January 9,
1987, Amar deposited the check with the PCIB-Zamboanga City, but it was
dishonored for being a "Closed Account." Whereupon, Amar filed with the
Zamboanga City Fiscal's Office sometime in April 1987 a complaint
against Garay for violation of Batas Pambansa (BP) Blg. 22 (Bouncing
Checks Law) which docketed therein as I.S. No. 87-220.
During the preliminary investigation before herein respondent Fiscal
Mateo P. Francisco, Garay and Amar agreed to settle the case amicably.
Thus, on June 25, 1987, Garay offered to pay the amount of P10,000.00
as. initial payment of his obligation but, since Amar was not present
at that time, Garay handed the P10,000 to respondent at the latter's
office, in the presence of stenographer S. Codilla, for which
respondent issued an acknowledgment receipt, with the express
understanding that the said amount will be given to Mr. Amar. Of the
aforementioned amount, however, it appears that only P5,000 was
actually turned over by respondent to Amar at the former's residence on
the following day (June 26, 1987).
Thereafter, or on August 17, 1987, Garay gave Amar at respondent's
office and in the latter's presence P1,000 in cash and a check (PNB
Check No. 761969-T) in the amount of P4,000 which the latter was
subsequently able to encash, in full payment of Garay's loan obligation
to Amar.
Notwithstanding said payments, and contrary to his expectation that
I.S. No. 87-220 would soon be dropped, Garay instead found himself
being charged anew by respondent sometime in January 1988 with
violation of BP Blg. 22 (Crim. Case 8687) and Estafa (Crim. Case No.
8686). Through his counsel, Atty. Alfredo Jimenez, Garay requested
Fiscal Francisco to move for the dismissal of the two (2) cases on the
ground that the aforesaid loan had been paid in full, but said request
was rejected by the respondent on April 22, 1988.
As a postscript to Amar's testimony given during the hearing of
consolidated Criminal Case Nos. 8686 and 8687 on November 28, 1988,
that respondent gave him only P5,000 out of the total amount of P10,000
entrusted by Garay to respondent, Garay filed an affidavit-complaint,
dated January 12, 1989, charging respondent with dishonesty.
In his counter-affidavit of March 28, 1989, respondent denied having
misappropriated or pocketed any amount from Garay or Amar and averred
that he filed the two (2) informations for estafa and violation of the
Bouncing Checks Law against Garay because of Amar's failure to execute
an affidavit of desistance and further on account of Amar's insistence
to file the two cases in court for Garay's failure to pay the amount of
P5,000 over and above his obligation of P10,000. (As disclosed,
however, by the testimony of Amar given during the hearing of the
cases, he (Amar) only filed a complaint for violation of B.P. Blg. 22
and not for estafa against Garay because they were compadres and solely
for the purpose of compelling the latter to pay his loan of
P14,960.00); that if it was true that he failed to deliver the P10,000
to Amar, Garay should have brought up said fact when he, Garay, was
subpoenaed or when he received the resolution of the case; that Amar's
testimony given before the court hearing of the aforesaid two criminal
cases is a blatant and deliberate lie because he personally gave to
Amar the P10,000 in the presence of his (respondent's) wife, son,
brother-in-law, and sister-in-law, namely, Eleonor S. Francisco, Ian
Mark Francisco (10 years old), Alberto Cajayon and 3d Assistant City
Fiscal before City Fiscal Wilfredo M. Yu during Dorothy Cajayon; and
that Amar's aforesaid testimony before the court conflicts grossly with
his statement made under oath before City Fiscal Wilfredo M. Yu during
the hearing of Garay's motion for reinvestigation filed thru his
counsel, Atty. Jimenez, that he (Amar) did not receive a single centavo
from respondent.
After due investigation, Pagadian City Fiscal Alejandro S. Urro
recommended the dismissal of the administrative complaint against
respondent for the following reasons: (a) it is rather strange why
Garay did not demand from Amar an affidavit of desistance on August 17,
1987, when he tendered to the latter the remaining balance of his loan
obligation, and insist for the return of the check that formed the
basis of the complaint; (b) it is inconceivable for Amar not to know
the exact amount given by Garay to respondent on June 26, 1987, since
the latter informed the former's wife by telephone of his initial
payment made to respondent; (c) that Amar's credibility leaves much to
be desired, in view of his conflicting statements, on the one hand,
that respondent gave him only P5,000 on June 26, 1987, and that he did
not receive a single centavo from the latter, on the other; (d) that,
although respondent was negligent in not demanding a receipt from Amar
when he gave to him the money, his claim that he handed the full amount
of P10,000 to Amar is corroborated by Fiscal Cajayon and other
witnesses; and (e) that, considering her official position, there is no
reason to doubt Fiscal Dorothy Cajayon's sworn statement confirming
respondent's assertion, although, she is respondent's sister-in-law,
which statement was corroborated by her husband, Alberto Cajayon, who
presumably would not allow his wife to be used as an instrument in the
pursuit of a lie.
Upon review, the Secretary of Justice, in a Memorandum for me, dated
January 26, 1990, disagreed with the investigating fiscal and, instead,
recommended respondent's dismissal from the service, in view of his
following findings and observations:
"In
receiving the money from Mr. Garay for payment to Mr. Amar, Fiscal
Francisco overstepped the bounds of duty and opened himself to an
anomalous position. Fiscal Francisco, knowing the sensitive nature of
his position, should not have allowed M. Amar to pick up the money at
his house. Furthermore, Fiscal Francisco should have asked for a
receipt of the amount given to Mr. Amar, as logic and proper sense
dictates. This lapse takes a more sinister shade when we consider that
just a day before, on June 25, 1987, he had carefully and meticulously
prepared an acknowledgment receipt (rec., p. 36) evidencing his receipt
of the amount of P10,000.00 from Mr. Garay. If he was duly cognizant of
the need to draw up some proof of his receipt of the money from Mr.
Garay; why had he soon forgotten to document his transaction with Mr.
Amar, when this was just as important a factor in the amicable
settlement between Messrs. Garay and Amar.
"With
respect to the corroborative statements of Mrs. Eleonor Francisco, M.,
Alberto Cajayon and Fiscal Dorothy Cajayon we cannot give due weight to
the same on the ground of relationship. Mrs. Eleanor Francisco is the
wife of Fiscal Francisco while Mr. Alberto Cajayon and Fiscal Dorothy
Cajayon are his brother-in-law and sister-in-law respectively. They are
under moral obligation to give Franco due support in this cause.
"Furthermore, it is improbable
for both Fiscal Francisco and Mr. Amar, in the first instance, not to
mentioned the presence of the spouses Cajayon as witnesses to their
transaction, considering that Mrs. Cajayon is also a prosecutor. It
appears that the addition of the spouses Cajayon as witnesses was a
mere afterthought to lend credence to the statement of Mrs. Francisco
in defense of her husband, the respondent herein."
After going over the records of the case, I concur in the foregoing observations of the Secretary of Justice. The record is sufficient in law to sustain a finding that respondent fiscal indeed pocketed or misappropriated the amount of P5,000 of the P10,000 Garay handed him in trust for delivery to Amar pursuant to the parties' amicable settlement. If it is true, as respondent vigorously maintains, that he handed to Amar the entire amount of P10,000 on June 6, 1987, he should have asked Amar to execute an acknowledgment receipt therefore which he did not, as what he previously did when Garay entrusted to him at his office the P10,000 for delivery to Amar. That respondent, per his assertion, gave the P10,000 to Amar in the presence of his (respondent's) wife, son, brother-in-law and sister-in-law does not bolster any of his claim to that effect, in view of the close relationship of said persons to respondent. And there is the circumstance even more telling that respondent failed to rebut or attempt to disprove Garay's statement in his affidavit-complaint of January 12, 1989, that respondent's wife went to see Amar and tearfully pleaded that he, Amar, sign a receipt for P10,000, which was turned down for the simple reason that was received was only P5,000.
In sum therefore, there is sufficient evidence to permit the reasonable inference that respondent is guilty of dishonesty which renders him unfit to be retained further in the prosecution service. As tersely put by the Supreme Court:
"The
Government cannot well tolerate in its service a dishonest official . .because by reason of his government position, he is given more and
ample opportunity to commit acts of dishonesty against his fellowmen ..; and by reason of his office, he enjoys and possesses a certain
influence and power which renders the victims of his grave misconduct,
oppression and dishonesty less disposed and prepared to resist and to
counteract his evil acts and actuation." (Nera vs. Garcia and
Elicaño, 106 Phil. 1031, at p. 1036).
WHEREFORE, and as recommended by Secretary of Justice, Third Assistant City Fiscal MATEO P. FRANCISCO of Zamboanga City is hereby DISMISSED form the service, effective upon receipt of a copy of this Order.
DONE in the City of Manila, this 9th day of March, in the year of Our Lord, nineteen hundred and ninety.
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