The trial of the malversation and graft cases against a former legislator will go on full swing as the Sandiganbayan junked for lack of merit the respondent’s bid to quash the charges arising from his alleged irregular transfer of his discretionary fund to a non-government organization (NGO) in 2008.
The trial will proceed after the anti-graft court, in a resolution dated July 26, denied former Iloilo congressman Niel Tupas’ petition for demurrer.
A demurrer to evidence is a motion asking the court to decide on the case solely on the basis of the evidence presented by the prosecution while challenging such evidence to prove that it is not enough to merit conviction.
“We are not persuaded. Passing through the assertions of the prosecution in their Comment/Opposition [on Tupas’ demurrer to evidence] and the evidence presented, it is ostensible that they were able to build up the case against the accused,” the anti-graft court said.
Tupas may have acted in “bad faith or gross inexcusable negligence” when he admitted in his counter-affidavit that he recommended NGO Kabuhayan at Kalusugan Alay sa Masa Foundation Inc. or KKAMFI as project partner of then state-run National Agribusiness Corporation or NABCOR.”
“It is quite definite that the public fund supposedly earmarked for the project is now unaccountable,” the Sandiganbayan added.
The anti-graft court also cited the prosecution’s argument that Tupas was entitled to discretionary Priority Development Assistance Fund (PDAF) to subsidize his projects being a member of the House of Representatives and therefore ha effective control over the fund which was considered personal.
“Jurisprudence dictates that malversation is committed either intentionally or by negligence. The dolo or the culpa present in the offense is only a modality in the perpetration of the felony, as held in the case of Zoleta vs. Sandiganbayan. Thus, his claim of innocence would be negated upon final finding of negligence on his part that led others to take or misappropriate public funds,” the anti-graft court pointed out.
“In short, the motion of accused Tupas is not adequate to rebut the presumption of malversation enshrined in Article 217 of the Revised Penal Code. At this point, the Court has sufficient reason to believe that the prosecution is on the right track in establishing and substantiating the material allegations in the foregoing information unless derailed by competent evidence by the accused,” it added.
The anti-graft court having decided to proceed with Tupas’ trial extends the former congressman being the accused the privilege to present evidence to defend himself “in the interest of fair play.”
“It is best to proceed with the continuation of the trial for the reception of evidence for the accused where all evidence of both parties will be subject to rigorous but objective appreciation of the Court,” the Sandiganbayan said.
“In view of the foregoing, accused Tupas’ Motion for Leave to File Demurrer to Evidence is denied for lack of merit,” it added.
