Embezzlement – Abuse Of Office
T.C. JUDICIARY
5th Criminal Chamber
Esas : 1994/246
Decision : 1994/620
Date of Decision : 22.02.1994
SUMMARY: The defendant, who is a salary fiduciary; by writing more than the actual amount in the accrual and payable amount columns in the payrolls he arranged, the same amount in the payrolls he arranged, by adding the increase in income and stamp tax to the accrual amount in accordance with the increase he made in the payrolls of overtime and tax refunds and by going from net to gross and by adding the increase in income and stamp tax to the accrual amount, he collected 13. 319.941 liras from the bank, and by including a person who left his job in the additional wage payment payroll and ensuring that 124.000 liras were paid to this person, he acquired a total of 13.442.941 liras, and since it is understood that these moneys are not the moneys entrusted to the defendant due to the normal function of his duty or under his custody and responsibility, the crime of embezzlement does not occur. If the defendant’s act has the ability to deceive, it constitutes joint forgery, otherwise it constitutes the offense of abuse of office.
(765 S. Code Art. 59, 202, 219)
Case: At the end of the trial of Abdülkadır, who is accused of embezzling money while he was working as a payroll clerk at the tax office, he was sentenced to 5 years of heavy imprisonment and 16.834.926 TL heavy fine in accordance with articles 202/2, 3, 59, 219/last of the Turkish Penal Code, and he was permanently banned from public office, which was given by (Elazığ First High Criminal Court) on 14. 12.1993 and numbered 1993/39 main, 1993/209 decision, the Supreme Court of Appeals has been requested by the defendant; the case documents were sent to the Department with a notification from the Chief Public Prosecutor’s Office and examined and considered accordingly:
Decision: Based on the hearing held, the evidence collected and shown in the decision, the court’s opinion and discretion in accordance with the results of the investigation, other appellate objections are rejected. However;
By writing more than the actual amount in the accrual and payable amount columns in the payrolls prepared by the defendant as a salary fiduciary, by adding the increase in income and stamp tax to the accrual amount by going from net to gross in accordance with the increase in the amount column to be paid in the overtime and tax refund payrolls, and by collecting the money from the bank against the check issued from the accounting directorate according to these payrolls, thus overwritten 13.319.941 TL and H…. It is understood that Mehmet, who left his duty at the Tax Office as of 15.3.1991, included 124.000 liras in the April 1991 supplementary wage payment payroll of Mehmet, who left his duty at the Tax Office as of 15.3.1991, and ensured that 124.000 liras were paid to this person, thus acquiring a total of 13.433333. 941 liras and according to the court’s finding of fact, since the money subject to the crime is not among the money entrusted to the defendant due to the normal function of his duty or under his custody and responsibility, his actions will constitute the crime of joint forgery if he has the ability to deceive, otherwise the crime of abuse of office, not embezzlement,
It was decided unanimously on 22.2.1994 that since the appeals of the defendant’s attorney were deemed appropriate in this respect, the verdict should be (DISMISSED) in accordance with Article 321 of the Code of Criminal Procedure, as requested.