Forgery Of Documents In Embezzlement Acts Is Considered As An Element Of The Crime Of Embezzlement And Cannot Be Convicted For Forgery Of Documents
7TH CRIMINAL CHAMBER OF THE COURT OF CASSATION, DECISION NO.2011/4182, DECISION NO.2011/15824, DECISION DATE: 06.07.2011 VIOLATION OF THE BANKING LAW – FORGERY OF DOCUMENTS – EMBEZZLEMENT – ELEMENTS OF THE CRIME
SUMMARY. ON THE DATE OF THE OFFENSE, THE DEFENDANT, WHO WAS A COMMERCIAL LOAN MANAGER AT THE BRANCH OF YAPI KREDI BANKASI A.Ş. BRANCH OF YAPI KREDIT BANK A.Ş. ON THE DATE OF THE CRIME, THE DEFENDANT, WHO HAD THE RESPONSIBILITY OF SUPERVISION AND PROTECTION OVER THE MONEY ENTRUSTED TO HIM, WITH THE INSTIGATION OF HIS FRIEND, THE CO-DEFENDANT, ON BEHALF OF THE COMPANIES THAT ARE THE BANK’S CREDIT CUSTOMERS, WITH THE KNOWLEDGE OF THE COMPANY OFFICIALS, OPENED A CREDIT ACCOUNT WITHOUT HIS REQUEST AND ORDER, ISSUED A FORGED PROMISSORY NOTE AS COLLATERAL FOR THE CREDIT ACCOUNT OPENED IN THE NAME OF ONE OF THESE COMPANIES, WITHDREW AND EMBEZZLED A TOTAL OF 1.510.000 TL BELONGING TO THE BANK BY ISSUING FORGED PAYMENT INSTRUCTIONS. IN THE CASE WHERE HE WITHDREW 510.000 TL AND EMBEZZLED IT; IN ACCORDANCE WITH THE PROVISION IN ARTICLE 160/2 OF THE BANKING LAW NUMBERED 5411, THE AFOREMENTIONED ACTIONS OF THE DEFENDANT CONSTITUTE THE CRIME OF EMBEZZLEMENT SINCE THE CRIME WAS COMMITTED WITH FRAUDULENT, DECEPTIVE BEHAVIORS AIMED AT ENSURING THAT THE EMBEZZLEMENT IS NOT REVEALED.
SINCE THERE IS NO REGULATION IN THE BANKING LAW NUMBERED 5411 THAT A SEPARATE PENALTY WILL BE IMPOSED FOR THE CRIME OF FORGERY IN ADDITION TO THE CRIME OF EMBEZZLEMENT, IT SHOULD BE TAKEN INTO CONSIDERATION THAT THE ACTS OF THE DEFENDANT TO ISSUE FORGED DOCUMENTS WHILE COMMITTING THE ACTS OF EMBEZZLEMENT SHOULD BE EVALUATED AS AN ELEMENT OF THE CRIME OF EMBEZZLEMENT, AND THAT A CONVICTION DECISION CANNOT BE GIVEN FOR THE CRIME OF FORGERY OF DOCUMENTS.
As for the examination of the appeal of the conviction of defendants Bekir and Ahmet K. for the crimes of embezzlement and forgery made by the defendants’ defense attorneys;
In the examination made by deciding to reject the request of the defendant Bekir’s defense for a trial review according to the type and amount of the sentence imposed;
a) On the date of the crime, the defendant Bekir was assigned as a commercial loan manager at Yapı Kredi Bankası A.Ş. K… branch and had the responsibility of controlling and protecting the money entrusted to him / with the instigation of his friend, defendant Ahmet K., one of the bank’s credit customers A… M… Tekstil Ltd. Şti., E… Ç… İnşaat A.Ş., G… Ç… Ltd. Şti, B…. Otomotiv Ltd. Şti. opened a credit account in the name of B…. Otomotiv Ltd. Şti. without the knowledge, request and instruction of the company officials, issued a forged promissory note as collateral for the credit account opened in the name of G… Çelik Ltd. Şti., withdrew and embezzled a total of 1.510.000 TL belonging to the bank by issuing forged payment instructions; in accordance with Article 160/2 of the Banking Law No. 5411. In accordance with the provision in the article, the crime was committed with fraudulent, deceptive behaviors to ensure that the embezzlement was not revealed, and without considering that the aforementioned actions constitute the crime of qualified embezzlement, a written verdict was established against the defendants on the grounds that they committed the crime of simple embezzlement,
b) In the absence of a provision in the Banking Law No. 5411 stipulating that a separate penalty shall be imposed for the crime of forgery in addition to the crime of embezzlement, without considering that the acts of the accused to issue forged documents while performing the acts of embezzlement should be evaluated as an element of the crime of embezzlement, deciding to convict both defendants for the crime of forgery of documents as written,
Since it is contrary to the law and the appeals of the defendants’ defense counsels are deemed appropriate in this respect, it was decided unanimously on 06.07.2011 that the verdict be (DISMISSED), that the defendants who have no adverse appeal against the verdict be reserved their vested right in the penalty pursuant to Article 326/last article of the Code of Criminal Procedure No. 1412, which is in force pursuant to Article 8/1 of the Law No. 5320, and that the detention of the defendants be continued, taking into account the nature and nature of the crime.