THIRD DIVISION
 
AMANDO TETANGCO, G.R. No. 156427
Petitioner,  
  Present:
   
  Quisumbing, J.,
- versus - (Chairman),
Carpio,
Carpio Morales, and
Tinga, JJ.
 
THE HON. OMBUDSMAN and Promulgated:
MAYOR JOSE L. ATIENZA, JR.,  
Respondents. January 20, 2006
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DECISION
 
QUISUMBING, J.:
 

This petition for certiorari seeks to annul and set aside the Order,[1] dated
April 16, 2002, of public respondent Ombudsman in OMB-CC-02-0151-C which
dismissed the Complaint of petitioner Amando Tetangco against private
respondent Mayor Jose L. Atienza, Jr., for violation of Article 220[2] of the Revised
Penal Code (RPC). Also assailed is the Order,[3] dated August 1, 2002, denying the
motion for reconsideration.

On March 8, 2002, petitioner filed his Complaint before the Ombudsman

alleging that on January 26, 2001, private respondent Mayor Atienza gave P3,000
cash financial assistance to the chairman and P1,000 to
each tanod of Barangay 105, Zone 8, District I. Allegedly, on March 5, 2001,
Mayor Atienza refunded P20,000 or the total amount of the financial assistance
from the City of Manila when such disbursement was not justified as a lawful
expense.

In his Counter-Affidavit, Mayor Atienza denied the allegations and sought

the dismissal of the Complaint for lack of jurisdiction and for forum-shopping. He
asserted that it was the Commission on Elections (COMELEC), not the
Ombudsman that has jurisdiction over the case and the same case had previously
been filed before the COMELEC. Furthermore, the Complaint had no verification
and certificate of non-forum shopping. The mayor maintained that the expenses
were legal and justified, the same being supported by disbursement vouchers, and
these had passed prior audit and accounting.

The Investigating Officer recommended the dismissal of the Complaint for

lack of evidence and merit. The Ombudsman adopted his recommendation.

The Office of the Ombudsman, through its Over-all Deputy Ombudsman,

likewise denied petitioners motion for reconsideration.

Before us, petitioner assigns for resolution a single issue:

WHETHER OR NOT THE RESPONDENT OMBUDSMAN
COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT DISMISSED
THE CRIMINAL CHARGE AGAINST RESPONDENT MAYOR ATIENZA
FOR VIOLATION OF ART. 220 OF THE RPC DESPITE THE EXISTENCE
OF A PRIMA FACIE CASE AND PROBABLE CAUSE TO INDICT HIM FOR
THE CRIME CHARGED OR, AT THE VERY LEAST, FOR VIOLATION OF
SEC. 3(e) OF R.A. NO. 3019 (ANTI-GRAFT AND CORRUPT PRACTICES
ACT).[4]

The sole issue is, did the Ombudsman commit grave abuse of discretion in
dismissing the Complaint?
 Petitioner insists that Mayor Atienza illegally disbursed public funds when
he gave the aforementioned financial assistance to the chairman
and tanods of Barangay 105 since the disbursement was not authorized by law or
ordinance, which the Ombudsman did not consider when it dismissed the
Complaint of petitioner. According to petitioner, the dismissal by the Ombudsman
was capricious since the evidence on record was clear that the mayor was guilty of
graft and corruption.[5]

The Ombudsman, through the Solicitor General, contends that it did not
abuse its discretion and there was also no probable cause against private
respondent for violation of Art. 220 of the RPC.[6]

For his part, Mayor Atienza avers that there was no grave abuse of discretion
on the part of the Ombudsman when it dismissed the Complaint.[7]

After considering the submissions of the parties, we find that the petition
lacks merit. No grave abuse of discretion is attributable to the Ombudsman.

It is well-settled that the Court will not ordinarily interfere with the
Ombudsmans determination of whether or not probable cause exists except when it
commits grave abuse of discretion.[8] Grave abuse of discretion exists where a
power is exercised in an arbitrary, capricious, whimsical or despotic manner by
reason of passion or personal hostility so patent and gross as to amount to evasion
of positive duty or virtual refusal to perform a duty enjoined by, or in
contemplation of law.[9] Thus, we held in Roxas v. Vasquez,[10]
this Courts consistent policy has been to maintain non-interference in the
determination of the Ombudsman of the existence of probable cause, provided
there is no grave abuse in the exercise of such discretion. This observed policy is
based not only on respect for the investigatory and prosecutory powers granted by
the Constitution to the Office of the Ombudsman but upon practicality as well.
Otherwise, the functions of the Court will be seriously hampered by innumerable
 petitions assailing the dismissal of investigatory proceedings conducted by the
Office of the Ombudsman with regard to complaints filed before it, in much the
same way that the courts would be extremely swamped with cases if they could be
compelled to review the exercise of discretion on the part of the fiscals or
prosecuting attorneys each time they decide to file an information in court or
dismiss a complaint by a private complainant.

In this case, the action taken by the Ombudsman cannot be characterized as

arbitrary, capricious, whimsical or despotic. The Ombudsman found no evidence to
prove probable cause. Probable cause signifies a reasonable ground of suspicion
supported by circumstances sufficiently strong in themselves to warrant a cautious
mans belief that the person accused is guilty of the offense with which he is
charged.[11] Here, the Complaint merely alleged that the disbursement for financial
assistance was neither authorized by law nor justified as a lawful expense.
Complainant did not cite any law or ordinance that provided for an original
appropriation of the amount used for the financial assistance cited and that it was
diverted from the appropriation it was intended for.

The Complaint charges Mayor Atienza with illegal use of public funds. On
this matter, Art. 220 of the Revised Penal Code provides:
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.

The elements of the offense, also known as technical malversation, are: (1)
the offender is an accountable public officer; (2) he applies public funds or
property under his administration to some public use; and (3) the public use for
which the public funds or property were applied is different from the purpose for
which they were originally appropriated by law or ordinance. It is clear that for
technical malversation to exist, it is necessary that public funds or properties had
been diverted to any public use other than that provided for by law or ordinance.
[12]
 To constitute the crime, there must be a diversion of the funds from the purpose
for which they had been originally appropriated by law or ordinance.[13] Patently,
the third element is not present in this case.

Conformably then with Section 2, Rule II of the Rules of Procedure of the

Office of the Ombudsman,[14] the Investigating Officer may recommend the
outright dismissal of a complaint if he finds the same devoid of merit.[15] That is
exactly what happened in this case. Thus, no abuse of discretion, much less grave
abuse, may be attributed to the respondent Ombudsman.

WHEREFORE, the instant petition is DISMISSED for lack of merit. No

pronouncement as to costs.

SO ORDERED.
 
 
 
  LEONARDO A. QUISUMBING
Associate Justice
 
 
WE CONCUR:
 
 
 
 
 
ANTONIO T. CARPIO
 Associate Justice

CONCHITA CARPIO MORALES DANTE O. TINGA

Associate Justice Associate Justice
 
 
 
ATTESTATION
 
I attest that the conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.
 
 
 
 
  LEONARDO A. QUISUMBING
Associate Justice
Chairman, Third Division
 
 
CERTIFICATION
 
Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairmans Attestation, it is hereby certified that the conclusions in the above
Decision were reached in consultation before the case was assigned to the writer of
the opinion of the Courts Division.
 
 
 
 
  ARTEMIO V. PANGANIBAN
Chief Justice
 
[1]
 Records, pp. 47-49.
[2]
 Article 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.
[3]
 Records, pp. 56-58.
[4]
 Rollo, p. 181.
[5]
 Id. at 182-185.
[6]
 Id. at 222-226.
[7]
 Id. at 247-248.
[8]
 See Esquivel v. Ombudsman, G.R. No. 137237, 17 September 2002, 389 SCRA 143, 151.
[9]
 Baylon v. Office of the Ombudsman, G.R. No. 142738, 14 December 2001, 372 SCRA 437, 449.
[10]
 G.R. No. 114944, 19 June 2001, 358 SCRA 636, 646.
[11]
 Supra, note 9.
[12]
 Parungao v. Sandiganbayan, G.R. No. 96025, 15 May 1991, 197 SCRA 173, 180-181.
[13]
 People v. Montemayor and Ducusin, No. L-17449, 30 August 1962, 116 Phil. 78, 81.
[14]
 Administrative Order No. 07 of the Office of the Ombudsman.
Sec. 2. Evaluation.Upon evaluating the complaint, the investigating officer shall recommend whether it may be:
a)       dismissed outright for want of palpable merit;
b)       referred to respondent for comment;
c)       indorsed to the proper government office or agency which has jurisdiction over the case;
d)       forwarded to the appropriate office or official for fact-finding investigation;
e)       referred for administrative adjudication; or
f)        subjected to preliminary investigation.
[15]
 See Knecht v. Hon. Desierto, G.R. No. 121916, 26 June 1998, 353 Phil. 494, 502.