The Sandiganbayan Sixth Division has denied the motion for leave to file demurrer to evidence filed by former North Cotabato Rep. Gregorio Tocmo Ipong who sought to challenge the prosecution's evidence in his graft case involving the reportedly anomalous use of his P4.9-million Priority Development Assistance Fund (PDAF).
Ipong has been slapped with violations of Section 3(e) of Republic Act 3019 or the Anti-Graft and Corrupt Practices Act and Article 217 of the Revised Penal Code, otherwise known as malversation, when he endorsed Aaron Foundation Philippines Inc. (AFPI) as the beneficiary of his PDAF back on May 3, 2007.
He reportedly selected AFPI as "project partner" in implementing livelihood projects for his constituents even without undergoing public bidding, as required under RA 9184 and its implementing rules and regulations. Moreover, AFPI is unaccredited and unqualified to undertake the said projects.
He asked permission from the anti-graft court to file demurrer to evidence, which would allow him to challenge the sufficiency of the prosecution's evidence to secure a guilty verdict.
Ipong said in his motion that the complaint against him is "defective" because there was no Notice of Disallowance and the audit was incomplete at the time it was filed. Even up to now, Ipong said that a Notice of Disallowance has not been issued.
Ipong added that the prosecution failed to prove the capacity or function for which he is being charged. The same goes for his acting with manifest partiality, evident bad faith, or gross inexcusable negligence when he appointed AFPI as the NGO conduit of his office.
He also said the evidence of the prosecution is insufficient in proving all the elements of malversation, since his office has neither custody nor control over his PDAF. Ipong stressed that the funds never came into his hands.
However, the anti-graft court said in its resolution that contrary to Ipong's arguments, the prosecution's evidence has a leg to stand on and his motion was denied.
"After a careful study of the documentary and testimonial evidence presented by the prosecution, the Court finds that, if unrebutted, the same is prima facie sufficient to support a verdict of guilt," the Sandiganbayan said.
Should Ipong file his demurrer to evidence without leave of court, he would be waiving his right to present evidence.
The six-page resolution dated Aug. 25 was penned by Sixth Division Chairperson Sarah Jane Fernandez with the concurrence of Associate Justices Kevin Narce Vivero and Bayani Jacinto.