Abuse Of Trust Due To Service
T.C.
Supreme Court
23rd Criminal Chamber
No :2015/8739
Decision No :2016/6055
COURT :Criminal Court of First Instance
CRIME : Abuse of trust due to service
JUDGMENT : 10 months imprisonment and 500 TL judicial fine pursuant to articles 155/2, 62/1, 52/2, 51/1 of the TPC, postponement
The file was examined and considered:
In the case where it is claimed and accepted that the defendant leased and used the CNC machine and accessories owned by the participant with a financial leasing agreement, the contract was terminated because he did not make the payments specified in the contract on time, the defendant did not return these goods to the participant and committed the crime of abuse of trust by continuing to use them,
As of the defendant’s defense, the written statements of the participant and the scope of the file; there is no inconsistency in the court’s acceptance that the defendant did not return the goods subject to the financial leasing contract and that the elements of the imputed crime occurred. Despite the termination of the financial leasing contract and the warning, the defendant did not return the goods received by the defendant to the participant, therefore, in the case filed with the Istanbul 10th Commercial Court of First Instance (dated 09.12.2009, no. 2009/555 E., 2009/791 K. numbered), it was understood that the case was accepted and the goods were decided to be returned to the participant, and the reversal opinion in the notification was not joined.
The other appeal requests of the defendant’s defense counsel, which are not deemed appropriate, are rejected,
However;
As stated in the decision of the Criminal General Assembly of the Court of Cassation dated 19.06.2007 and numbered 2007/10-108 E., 2007/152 K., although there is no obligation that the judicial fine must be determined from the lower limit if the imprisonment sentence is determined from the lower limit, the judicial fine was determined as 30 days above the lower limit without sufficient and legal justification,
Since it has required to be spoiled and the appeal requests of the defendant’s defense counsel have been deemed appropriate in this respect, the verdict shall be DISMISSED in accordance with Article 321 of the Code of Criminal Procedure No. 1412, which must be applied in accordance with Article 8/1 of the Law No. 5320 for this reason, but since this issue, which does not require a new trial, can be corrected in accordance with Article 322 of the same Law. Since it is possible to correct this issue which does not require a new trial, the verdict, which is in accordance with the procedure and law in other aspects by completely removing the terms “30 days”, “25 days” and “500” TL.” from the paragraph of the verdict regarding the judicial fine and adding the phrases ‘5 days’, ‘4 days’ and ‘80TL’ respectively, was approved by unanimous vote on 10.05.2016.