Once again, the issue of whether or not the constitutional right of an accused to be presumed innocent has been overcome so as to warrant a judgment of conviction confronts this Court.

On a petition for certiorari, petitioner, Julius Froilan, has challenged the judgment of conviction of respondent court finding him as well as three (3) other co-accused guilty of the crime of violation of Section 3(g) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, for being contrary to law and jurisprudence.

The facts of the case as found by the Sandiganbayan and quoted both by petitioner and the Office of the Solicitor General in their respective pleadings filed before us are quoted verbatim, to wit:

The Sandiganbayan found petitioner together with the three (3) other co-accused guilty of the crime as charged. The dispositive portion of the judgment of conviction is quoted hereunder: NewÓ miso

Petitioner filed this petition for certiorari assailing the said decision on the following assignment of errors:

Meanwhile, the other accused, Sergio L. Salubre, Rutillo Real and Victorio S. Pabe also filed a petition for certiorari with this Court.4 [G.R. No. 115977.] Said petition was denied on August 31, 1994 for failure to comply with the requirements of Supreme Court Revised Circular No. 1-88. Said accused filed a motion for reconsideration which was denied with finality on October 19, 1994. Unfazed, they filed a motion for leave to file second motion for reconsideration. This, again, was denied by this Court in a Resolution dated February 1, 1995. Another motion for reconsideration was filed which was likewise denied on April 3, 1995. In an apparent attempt to revive their petition, the said accused moved to consolidate G.R. No. 115977 with this petition, but their motion was denied on May 29, 1995. Subsequent motions for reconsideration and relief from judgment filed by the three accused were all denied by this Court considering that judgment had already been entered in the Book of Entries of Judgments.

On November 22, 1995, accused Salubre, Real and Pabe filed with this Court a petition for habeas corpus,5 [G.R. No. 122574.] praying for their immediate release from commitment. This petition was consolidated with G.R. No. 115977 and the instant case. On February 7, 1996, this Court denied the petition for habeas corpus upon a finding that their commitment was a necessary consequence of the finality of the judgment of their conviction by the Sandiganbayan in Criminal Case No. 12881. Petitioners’ motion for reconsideration was denied on June 26, 1996.

Going back to the instant petition for certiorari, we rule in favor of petitioner.

Petitioner strongly argues that there was no reason for him to be convicted of the offense charged because he was the one who gave the guarantee to the government that in case there would be a finding of an overprice by the Commission on Audit (COA), he would refund the same. It is undisputed that an actual refund of P5,232.87 was made by petitioner, which was the amount found by the COA to have been the overprice. Further, petitioner contends that if one of his co-accused, Mr. Mateo Limbago, the Superintendent of the Bilar Agricultural College (BAC), was acquitted by the Sandiganbayan on the ground that the government was amply protected by the guarantee given by him, then why should he be convicted when he was the one who gave the very same guarantee that protected the government from any possible injury brought about by the contract he executed with the BAC, the same contract alleged to be grossly and manifestly disadvantageous to the government in the Information?

After carefully reviewing the records of the case, we are constrained to agree with petitioner. The Information filed with the Sandiganbayan charged petitioner and five (5) other accused with the crime of entering into a contract that was alleged to be grossly and manifestly disadvantageous to the government. In this connection, it is axiomatic that in conspiracy the act of one is the act of all.6 [People v. Panganiban, 241 SCRA 91, 102 (1995).] Too, conspiracy is never presumed. Like the physical acts constituting the crime itself, the elements of conspiracy must be proven beyond reasonable doubt.7 [Magsuci v. Sandiganbayan, 240 SCRA 13, 17 (1995).]

In this case, we are not persuaded with the theory of the prosecution that there was a conspiracy by and among the accused to defraud the government by overpricing the acquisition cost of the goods supplied to the BAC. We find it difficult to imagine how conspiracy in this case could have existed in the criminal act of causing damage to the government in terms of overpricing the goods bought by the latter from petitioner when, in reality, petitioner gave his guarantee to refund whatever overpricing the Commission on Audit will find out later on. In fact, it is not disputed that when the COA found an overprice in the amount of P5,232.87 and sought a refund thereof, petitioner, true to his promise, did actually make a refund. Misä act

Significantly, we note that one of petitioner’s co-accused in the criminal case below, namely, Mr. Mateo Limbago, the Superintendent of the Bilar Agricultural College, was acquitted by the Sandiganbayan on the ground, among others, that the government after all was amply protected by petitioner in the transaction. The Sandiganbayan held:

In the case at bar, it will be noted that one of the principal reasons for Mr. Limbago’s acquittal was the fact that the government --- the only entity which the law seeks to protect --- was amply protected by virtue of the written undertaking issued by petitioner, as the winning bidder, to refund whatever amount may be found as the overprice. Petitioner, being the one who gave the written guarantee and who saved the government from any perceived injury, must likewise be acquitted.

Likewise, the fact of the government being protected at all times by petitioner assumes another significance insofar as the innocence of petitioner is concerned. It must be remembered that in the crime for which petitioner was charged, i.e., Section 3 (g) of Republic Act No. 3019,9 [SEC. 3. Corrupt practices of public officers. --- In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby. (R.A. 3019).] the elements are: (a) that the accused is a public officer; (b) that he entered into a contract or transaction on behalf of the government; and (c) that such contract or transaction is grossly and manifestly disadvantageous to the government.

Readily, we find that one of the elements of the crime, i.e., that the contract or transaction is grossly and manifestly disadvantageous to the government, is conspicuously missing. The government was amply protected in the subject transaction, and consequently the contract was not grossly and manifestly disadvantageous to the government. Hence, the requirement of a moral certainty that the crime was committed, in order to uphold the judgment of conviction of petitioner, is absent in this case. Conviction must rest on nothing less than a moral certainty of guilt.10 [People v. Quindipan, 253 SCRA 421, 429 (1996).]

In essence, the prosecution has failed to overcome the constitutional presumption of innocence enjoyed by petitioner. Failure of the prosecution’s evidence to overcome the constitutional presumption of innocence entitles the accused to an acquittal.11 [People v. Martinez, 219 SCRA 502, 512 (1993).]Sâ djad

Lastly, in the challenged decision, we note that the Sandiganbayan found the computation of the Commission on Audit erroneous in that, there should still be a payable of P1,541.81 due from petitioner. We have reviewed the records of the case and find no basis to uphold such finding by the Sandiganbayan. Assuming arguendo that there was indeed an error in the computation as declared by the Sandiganbayan, the same cannot be ascribed to petitioner but to the COA. Petitioner cannot be held liable therefor.

WHEREFORE, the petition is GRANTED. The Decision of the Sandiganbayan in Criminal Case No. 12281, insofar as it found petitioner guilty of violation of Section 3 (g) of Republic Act No. 3019, is REVERSED and SET ASIDE. Consequently, petitioner is ACQUITTED of the crime charged.

Davide, Jr., C.J., (Chairman), Puno, and Kapunan, JJ., concur. Sppedscâ

Pardo, J., on official business abroad.