MISAPROPRIATIONLacking any evidence, however, of shortage, or taking, appropriation, or conversion by petitioner or loss of public funds, there is no malversation. (Narciso vs. Sandiganbayan, 229 SCRA 229 (1994)The 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 deemed never to have existed at all. (Diaz vs. Sandiganbayan, 302 SCRA 118 (1999)Mere absence of the funds is not sufficient proof of conversion. Neither is the mere failure of petitioner to turn over the funds at any given time sufficient to make even a prima facie case. Conversion must be affirmatively proved, either by direct evidence or by the production of facts from which conversion necessarily follows. (U.S. vs. Catolico, 18 Phil. 504 (1911); Vicente R. Madarang vs. Sandiganbayan, et.al., G.R. No. 112314, March 28, 2001, 355 SCRA 525)Withal, the Sandiganbayan should have satisfied itself that petitioner is guilty beyond reasonable doubt of the offense charged. A finding of guilt must rest on the strength of the prosecutions own evidence, and not on the weakness, deficiency or absence of evidence for the defense. (People vs. Batidor, 303 SCRA 335 (1999); People vs. Moreno, 321 SCRA 334 (1999); People vs. Vidal, 303 SCRA 1 (1999)Demand is not an element of, and is not indispensable to constitute, malversation since demand merely raises a prima facie presumption that missing funds have been put to personal use. (Nizurtado vs. Sandiganbayan, 239 SCRA 33 (1994)When the absence of funds is not due to the personal use thereof by the accused, the presumption of conversion is completely destroyedin fact, the presumption is deemed never to have existed at all; A public officers display of benevolence, commitment to and compassion for the poor may run counter to certain provisions of law and to some auditing rules and regulations, resulting in possible administrative sanctions, yet these certainly do not amount to the embezzlement of the funds of his office to merit prosecution and conviction. (Vicente R. Madarang vs. Sandiganbayan, et.al., G.R. No. 112314, March 28, 2001, 355 SCRA 525)

An accountable officer under Article 217 of the Revised Penal Code must receive money or property of the government which he is bound to account for. It is the nature of the duties of, not the nomenclature used for, or the relative significance of the title to, the position, which controls in that determination. Based on this definition, to be held accountable the public officer must receive the money or property, and later fails to account for it. As heretofore stated, in Salamera vs. Sandiganbayan, we ruled that one essential element of malversation is that a public officer must take public funds, money or property, and misappropriate it to his own private use or benefit. There must be asportation of public funds or property, akin to the taking of anothers property in theft. In malversation, it is necessary to prove that the accused received public funds, and that he could not account for them and did not have them in his possession and that he could not account for them and did not have them in his possession and that he could not give a reasonable excuse for the disappearance of the same. (Rueda vs. Sandiganbayan, et.al., G.R. No. 129064, November 29, 2000)

In Dumagat v. Sandiganbayan, 211 SCRA 17 (1992), the Supreme Court has held that the audit examination cannot be made the basis for holding the petitioner therein liable for malversation because it failed to establish that funds were indeed missing since funds kept in other vaults were not included in the examination. (Flordeliza F. Querijero vs. The People of the Philippines and the Sandiganbayan, G.R. No. 153483, February 14, 2003; Mendoza, J.) As stated in Tinga v. People (160 SCRA 483, 491 (1988): at this juncture, it may not be amiss to state that considering the gravity of the offense of Malversation of Public Funds, just as government treasurers are held to strict accountability as regards funds entrusted to them in a fiduciary capacity, so also should examining COA auditors act with greater care and caution in the audit of the accounts of such accountable officers to avoid the perpetration of any injustice. Accounts should be examined carefully and thoroughly to the last detail, with absolute certainty in strict compliance with the Manual of Instructions. (Flordeliza F. Querijero vs. The People of the Philippines and the Sandiganbayan, G.R. No. 153483, February 14, 2003; Mendoza, J.)

In this case, the shortage of funds which was attributed to petitioner was not indubitably established considering that the audit conducted was incomplete, irregular, and inaccurate and did not follow standard auditing procedures by excluding from the examination the other accountable officers in the office and failing to open the other safe used in the office. Hence, the presumption under Art. 217 of the Revised Penal Code, which was made the basis of petitioners conviction by the Sandiganbayan, is not applicable. (Flordeliza F. Querijero vs. The People of the Philippines and the Sandiganbayan, G.R. No. 153483, February 14, 2003; Mendoza, J.)