He has a receipt for P400.00. The municipal treasurer turned over to the government coffers P400.00 because that is due the government and pocketed the P100.00. The mere fact that there was a demand for an amount different from what is due the government, the public officer already committed the crime of illegal exaction. On the P100.00 which the public officer pocketed, will it be malversation or estafa? In the example given, the public officer did not include in the official receipt the P100.00 and, therefore, it did not become part of the public funds. It remained to be private. It is the taxpayer who has been defrauded of his P100.00 because he can never claim a refund from the government for excess payment since the receipt issued to him was only P400.00 which is due the government. As far as the P100.00 is concerned, the crime committed is estafa. (3) A taxpayer pays his taxes. What is due the government is P400.00 and the public officer issues a receipt for P500.00 upon payment of the taxpayer of said amount demanded by the public officer involved. But he altered the duplicate to reflect only P400.00 and he extracted the difference of P100.00. In this case, the entire P500.00 was covered by an official receipt. That act of covering the whole amount received from the taxpayer in an official receipt will have the characteristics of becoming a part of the public funds. The crimes committed, therefore, are the following: (a) Illegal exaction – for collecting more than he is authorized to collect. The mere act of demanding is enough to constitute this crime. (b) Falsification – because there was an alteration of official document which is the duplicate of the official receipt to show an amount less than the actual amount collected. (c) Malversation – because of his act of misappropriating the P100.00 excess
E l m e r P . B r a b a n t e C R I M I N A L L A W R E V I E W f o r t h e 2 0 1 1 B a r E x a m s Page 159 which was covered by an official receipt already, even though not payable to the government. The entire P500.00 was covered by the receipt, therefore, the whole amount became public funds. So when he appropriated the P100 for his own benefit, he was not extracting private funds anymore but public funds. Should the falsification be complexed with the malversation? As far as the crime of illegal exaction is concerned, it will be the subject of separate accusation because there, the mere demand regardless of whether the taxpayer will pay or not, will already consummate the crime of illegal exaction. It is the breach of trust by a public officer entrusted to make the collection which is penalized under such article. The falsification or alteration made on the duplicate can not be said as a means to commit malversation. At most, the duplicate was altered in order to conceal the malversation. So it cannot be complexed with the malversation.
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- Law, criminal law, Criminal Law Review, elmer p. brabante