Abuse Of Trust & Legal Dispute Distinction Court Of Cassation Decision
T.C.
Supreme Court
23rd Criminal Chamber
No :2015/7781
Decision No :2016/5875
REVIEWED DECISION
COURT :Heavy Penal Court
CRIME : Abuse of trust due to service
JUDGMENT : Two times: 1 year and 8 months imprisonment and 1.000 TL judicial fine pursuant to Articles 155/2, 62, 52/2-4, 53 of the TPC
The file was examined and the necessity was considered:
In the concrete case where it is alleged that the defendant, who works as a jeweler, took the gold brought by the participants on different dates as escrow, closed his workplace after a while and lost his trace and committed the crimes of abuse of trust due to service by not returning the gold of the participants and acquiring property;
The other appellate objections of the defendant are rejected,
However;
In the face of the defendant’s defense that the gold coins subject to the crime remained with him for a year, and the participants stated that they gave the gold coins for the purpose of exchanging them, in terms of determining the truth in a way that leaves no room for doubt; It should be determined beyond doubt whether the participants left the gold coins subject to the case to the defendant for a commercial purpose or to be preserved, and if it is understood that it was left for a commercial purpose, the action attributed to the defendant remains within the scope of the legal dispute, and if it is understood that it was left to be preserved, the crime of abuse of trust due to service will occur, and the legal status of the defendant should be appreciated and determined accordingly, but to make written judgments with incomplete research,
Since it required to be spoiled and the defendant’s appeal objections were deemed appropriate in this respect, it was unanimously decided on 05.05.2016 to VACATE the convictions in accordance with Article 321 of the Code of Criminal Procedure No. 1412, which should be applied in accordance with Article 8/1 of the Law No. 5320 for this reason.