EXPLAINER: Where Ombudsman lawyers failed in three charges against Dumanjug, Cebu Mayor Gungun Gica over 2014 'falsified' restaurant receipt. Prosecutors lost in Sandiganbayan despite certification of Ding Qua Qua manager and COA disallowance.

Contributed photos
Contributed photos

WHAT HAPPENED. The Sandiganbayan has thrown out three criminal charges against Dumanjug, Cebu Mayor Efren Guntrano Z. Gica, all arising from the alleged falsification of a receipt issued in 2014 by Ding Qua Qua Dimsum restaurant in Lahug, Cebu City. In his liquidation report, Gica allegedly changed the amount of P11,435 in the receipt to P21,435, padding it by P10,000, and pocketing the excess. Instead of refunding the local government P38,565 for his P50,000 cash advance, he returned only P28,565.

In a decision -- promulgated on December 9, 2022 but full text of the decision released only on Friday, January 6, 2023 -- the anti-graft court dismissed the charges of (a) falsification of public documents and malversation of public funds under the Revised Penal Code and (b) corruption under the Anti-Graft and Corrupt Practices Act.

The 35-page ruling acquitted Gica of the three counts “for failure of the prosecution to prove his guilt beyond reasonable doubt.” Interestingly, the decision was issued about seven months after the May 2022 elections, which Gica won with 83.87 percent of the vote.

The case was set off by a criminal and administrative complaint filed by Nelson Gamaliel F. Garcia with the Visayas Ombudsman on July 15, 2014. Garcia -- the town mayor from 2010 to 2016 -- accused Gica of bloating the amount paid for the dinner of 39 persons who were attending a seminar on budgeting. Gica, then the vice mayor, served as acting mayor when Garcia was suspended for two months.

‘MEASLY’ AMOUNT. It was a record of sort: the town’s highest official being accused of tampering with a restaurant receipt for the “measly” amount of P10,000. That Gica was cleared of the charges spared him further ignominy: other government officials who got away with cheating millions of pesos would’ve scoffed.

GICA’S DEFENSE. In an affidavit, Gica said he was asked to sign three liquidation forms by a staffer of the municipal accountant and he did, he said, because “it was common practice.” He didn’t say if he had anything to do with the receipt tampering – the Roman numeral “1” erased and in its place, “superimposed,” was the number “2” – but he denied the accusation that he misappropriated P10,000. He also said the cases were filed by a political rival, which would taint motive.

EVIDENCE ABOUT OR. Flora P. Taborada, an audit team leader of the Commission on Audit, in her affidavit said she made her initial observation by encircling the amount of P21,435.00 in the Ding Qua Qua receipt and writing the note “Altered.”

A written inquiry to the restaurant drew the reply from manager Maria Lourellie Decena that there was no purchase order or pre-agreement between DQQ and Dumanjug. Taborada said she compared the certified true copy of the DDQ receipt with the receipt attached to Gica’s liquidation report and found the latter to be “altered.” She said she assumed that Gica “altered the first digit in the amount indicated in the DQQ receipt because he was the accountable officer.” Since it was Gica who made the cash advance, she presumed that “it was also he who made all the documents for liquidation.” Gica was sent a “credit notice,” a demand for the accountable officer to pay the amount.

Among the documents submitted in evidence were “originals of certified true copies” for DDQ’s OR #02583 and its Tape Receipt dated April 25, 2014. It’s interesting to note that the copy of OR #02583 submitted with the liquidation report bore the amount of P21,435 while the copy of the same receipt of the DQQ manager bore the amount of P11,435.

WHAT ‘WASN’T PROVED.’ On the question of falsification, the Sandiganbayan said the prosecution failed to prove (a) there was an alteration or “intercalation” (insertion) on a document, (b) it was made on a genuine document, (c) it changed the meaning of the document and (d) the change made the document speak something false.

The prosecution, meaning the Ombudsman lawyers, failed to prove that Gica made an untruthful statement of the amount or the amount stated in the purchase order and the liquidation report were “absolutely false.” How about the testimony of COA’s Taborada and Garcia, both of whom presented documents that tended to show the true cost was P10,000 less? The documents were offered, the court said, “not as authentic but falsified public documents.”

The Sandiganbayan said the prosecution “anchored” the charge of falsification on the restaurant manager’s statement.” “But Decena “was never presented in any of these cases to prove the fact of falsification.” COA’s Taborada and then mayor Garcia “had no personal knowledge” that the entries in the DQQ OR were falsified. How about Decena’s letter in answer to the COA inquiry? Hearsay evidence, said the court, and cannot be trusted.

The Sandiganbayan also pointed out that the original falsified DQQ receipt should’ve been presented as evidence. The certified true copy of the OR offered in court “does not clearly show the alleged insertion made.” The COA team leader instantly noticed the alteration and marked it “Altered” but the Sandiganbayan didn’t see it on the certified true copy.

OTHER CHARGES ALSO FALL. The two other charges – corruption and malversation – that relied on the fact of falsification also crashed.

Basing on its finding on the alteration/insertion charge, the court found no bad faith in Gica: “Absent any showing of falsification” made on the DQQ receipt, “the fraud negated.”

The ruling said the prosecution failed to prove that Gica “took, misappropriated or consented, or through abandonment or negligence, permitted another to take” the money. The obligation to refund P38,565 -- instead of P26,565 because the cost of the food for the seminar was only P11, 435 – was based on a premise “not established by the evidence presented.”

The court repeated that “no probative value” could be given to the letter of DQQ manager Decena who didn’t testify in court to prove the correct amount. Thus reasonable doubt exists, which decidedly benefits Gica. His guilt was not proved “with moral certainty.”

OMBUDSMAN’S PERFORMANCE. The Ombudsman -- whose office investigated the complaint against Gica and whose lawyers prosecuted the charges it had filed before the Sandiganbayan -- must marvel at its own actions since 2017.

In April of that year, the Ombudsman ordered Gica’s dismissal. A month later, it reinstated Gica and acknowledged that his dismissal was ordered before hearing his defense. Eight months after that, the anti-graft office issued another order dismissing Gica “with finality,” which the mayor contested before the Court of Appeals.

Overall, the Ombudsman has made a less-than-even performance on the Gica case. An internal mechanism may need to review it, to learn lessons from and perhaps sanction those who did their job below basic standards, such as knowing the elements of a crime and the evidence required to prove it.

As to Mayor Gica, last year’s election victory in May and Sandiganbayan acquittal in December should be enough to put the issue to rest. []


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