REPUBLIC OF THE PHILIPPINES

OFFICE OF THE OMBUDSMAN

OFFICE OF THE DEPUTY OMBUDSMAN FOR LUZON
AGHAM ROAD, DILIMAN
QUEZON CITY, 1104

LAAAAAAAA
Complainant,

-versus - OMB-L-C-00-12345
FOR: MALVERSATION,
TECHNICAL MALVERSATION

CCCCCCCCCCCCC
Respondents.
x-----------------------------------------x

SUPPLEMENTAL POSITION PAPER

Respondents _________________, by counsel, and in the

interest of justice and fair play, respectfully request for leave to file
this Supplemental Position Paper to supplement and amplify their
arguments why they cannot be held liable for the charges levelled
against them -
.
1. Complainant, in filing the instant criminal complaint,
claims that she is a taxpayer. Aside from the fact that this claim is
unsubstantiated by any proof, complainant miscontrues the
requirement of locus standi or standing in court by claiming that
she is a taxpayer. This requirement is material in petitions filed
with the Supreme Court which considers locus standi of the
petitioner to ask the Supreme Court exercise its power of judicial
review. Her being a taxpayer is irrelevant or misplaced.

2. What is important is that complainant should have personal

knowledge of the transactions complained of as basis for the
criminal charges made against the respondents. As emphasized
in the case of Borlongan v. Pena, G.R. No. 143591, Nov. 23, 2007:

“It must be emphasized that the affidavit of the

complainant, or any of his witnesses, shall allege facts
within their (affiants) personal knowledge. The allegation
of the respondent that the signatures of Ponce, Abad, Ong
and Montilla were falsified does not qualify as personal
knowledge. Nowhere in said affidavit did respondent state
that he was present at the time of the execution of the
documents. Neither did he claim that he was familiar with
the signatures of the signatories. He simply made a bare
assertion that the signatories were mere dummies of ISCI
and they were not in fact officers, stockholders or
representatives of the corporation. At the very least, the
affidavit was based on respondent's "personal belief" and
not "personal knowledge”. Considering the lack of
personal knowledge on the part of the respondent, he
could have submitted the affidavit of other persons who
are qualified to attest to the falsity of the signatures
appearing in the questioned documents. One cannot just
claim that a certain document is falsified without further
stating the basis for such claim, i.e., that he was present
at the time of the execution of the document or he is
familiar with the signatures in question. Otherwise, this
could lead to abuse and malicious prosecution. This is
actually the reason for the requirement that affidavits
must be based on the personal knowledge of the affiant.
The requirement assumes added importance in the instant
case where the accused were not made to rebut the
complainant's allegation through counter-affidavits.”

2
 3. It does not appear that complainant had worked with the
City Government of XXXXXXXX City as to have personal knowledge
knowledge, the instant criminal complaint should be dismissed.

4. The charge of malversation against respondents is

baseless. The elements of malversation of public funds are:(1) that
the offender is a public officer;(2) that he had the custody or control
of funds or

5. In the crime of malversation, all that is necessary for

conviction is sufficient proof that the accountable officer had
received public funds, that he did not have them in his possession
personal use. The presumption is, of course, rebuttable.
Accordingly, if the accused is able to present adequate evidence that
can nullify any likelihood that he had put the funds or property to
personal use, then that presumption would be at an end and the
prima facie case is effectively negated. The Supreme Court has
repeatedly said that when the absence of funds is not due to the
personal use thereof by the accused, the presumption is completely
destroyed; in fact, the presumption is never deemed to have existed
at all.

6. There is no showing that respondents received the public

funds in question and have custody over such funds for which they
the funds for their personal use. The funds were expended for the
public project intended. 0ther charge is clearly unfounded that
should be dismissed.

7. As to the last two charges, the elements of the offense, also

diverted to any public use other than that provided for by law

3
present in this case. Article 220 of the Revised Penal Code
Provides, to wit:

“Art. 220. Illegal use of public funds or property. –

Any public officer who shall apply any public fund or
property under his administration to any public use
other than that for which such fund or property
were appropriated by law or ordinance shall suffer the
penalty of prision correccional in its minimum period or a
fine ranging from one-half to the total of the sum
misapplied, if by reason of such misapplication, any
damages or embarrassment shall have resulted to the
public service. In either case, the offender shall also suffer
the penalty of temporary special disqualification.

If no damage or embarrassment to the public service

has resulted, the penalty shall be a fine from 5 to 50
percent of the sum misapplied.”

8. As already explained in their Position Paper, there was no

unlawful diversion of the funds because the request for the funds
account for the public funds. Hence, the filing of the instant
complaint is premature aside from being groundless.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed

that the instant complaint be dismissed for lack of probable cause.