15.Criminal Chamber
Base Number: 2012/18721
Decision Number: 2014/11459
“Justice Text”
COURT: Assize Court
CRIME: qualified fraud
JURISDICTION: Conviction
The file was examined and the need was considered;
For fraud to occur; it is necessary for the perpetrator to mislead someone with fraudulent acts that can deceive him, and to benefit himself or someone else at the expense of him or someone else. It’s a cheating lie. The fraudulent behavior by the perpetrator must be heavy, intense and skillful to a certain extent, and there must be some actions that will eliminate the possibility of the victim’s examination in terms of display. The victim should be misled by the fraudulent behaviors used, and the accused or someone else should be given an unfair advantage by the victim who believes the lies as a result of this deception. Whether the fraud is deceptive or not should be evaluated incidentally, the nature of the event, its relationship with the act, the situation of the victim, and the qualities of the document that was hidden or changed if used, should be taken into account separately.
In order to ensure the reliability of the persons who carry out commercial activities as a profession, committing this crime during the commercial activities of the merchants (persons engaged in trade personally) or the persons who are the directors of the company or acting on behalf of the company is considered qualified in the article 158/1-h of the TCK. has been done. These concepts will be determined in accordance with the relevant provisions of the Turkish Commercial Code. Article 14 of the Turkish Commercial Code; A trader is also a person who operates a commercial enterprise without permission or approval due to his personal situation or the nature of his work, or because of his profession and duties, in violation of a law or a judicial decision … or despite the need for the permission of another person or an official authority. is considered a trader. “it is called. Commercial companies, in article 124 of the same law, Commercial companies; It consists of collective, limited, joint stock, limited and cooperative companies. In this Law, the collective and the limited partnership company; joint stock, limited liability company and a limited partnership whose capital is divided into shares are considered as capital companies”. The perpetrator of this crime may be the merchant or the company manager or the person acting on behalf of the company or the cooperative manager.
… The defendant, who is the official of the Construction Furniture Limited Company, has undertaken the construction of the company named Eryaman Mass Housing Zone … island 2 E 12. Block 3 on the parcel no. 3, which has been signed on 31/03/2005 with the sales promise contract drawn up at the Ankara 13th Notary Public. Although he sold the same independent section on 08.01.2007 to …, who participated in the sales contract on 08.01.2007, he sold the apartment numbered … Block 6 in the same place, for the second time, for which he received the money in cash, on 09/02/2005 … Although he sold the same independent section to …, who joined with the sales contract on 30.05.2007, for the second time, he sold the flat 4 H 7th Block 13 in the same place, for which he received the money in cash, on 21/07/2005 at the Ankara 13. Notary Public. Although it sold the same independent section to …, which joined with a promise agreement, it was sent to …, which joined with a sales agreement on 15.03.2008, for the second time. he got his money in advance by selling; In the event where it is claimed that the flats subject to these sales did not complete their construction and did not return the money they received from the participants, and that the defendant, who is the company manager in this way, committed the crime of qualified fraud committed within the scope of his commercial activity;
1- In the examination of the appeal requests made against the conviction provisions regarding the defendants’ actions against … and …;
According to the occurrence, the defense of the accused, the statements of the witnesses, the sales contracts, the sales promise contracts and the whole file; that the defendant, who is the director of the company, within the scope of his commercial activity, provided unfair advantage by selling the flats he promised to sell to the participants … There was no inaccuracy in the admission.
Rejection of other objections of the Public Prosecutor and the defense counsel, which are not found in place, according to the trial, the evidence gathered and shown at the place of decision, the opinion and discretion of the court in accordance with the results of the prosecution, and the scope of the file examined;
Even though the prison sentences given for the crime of fraud are determined from the lower limit, while determining the judicial fines, without giving sufficient and legal justification, determining the full number of days by moving away from the minimum limit for the same reason, assigning an extra sentence to the accused,
Since the appeals of the public prosecutor and the defense counsel were deemed appropriate for these reasons, the provisions of Article 321 of the CMUK, which should be applied in accordance with Article 8 of Law No. 5320, are required.
finely DESTROYED; however, this violation of the same Law without a retrial
Since it is possible to correct it in accordance with Article 322; In accordance with the Articles 158/1.h, 52/2 of the TCK numbered 5237, it is punished with a judicial fine of 20000 TL, which is 20.00 TL per day, in return for a judicial fine of 1000 days, which is given as a result in accordance with the 52nd article of the same law. Instead of his statements, he was sentenced to a judicial fine of 5 days in accordance with Article 158/1.h of the TCK No. 5237, and a judicial fine of 100.00 TL, as a result of 20.00 TL per day in return for a judicial fine of 5 days in accordance with Article 52/2 of the same Law. to be punished with a penalty”, to CORRECT and APPROVE the verdict by writing,
2- In the examination of the appeal requests made against the acquittal provisions given for the defendants’ actions against …, … and …;
It should be considered that the defendant’s actions, which are deemed to have been proven to be fraudulent, by promising to sell the said flats to the participants …, … and … with promises of sale contracts, and then obtaining unfair advantage by deceiving the participants by selling the same flats to other persons by not completing the construction of the flats but exhibiting fraudulent acts, constitutes the crime of qualified fraud. Making a written acquittal about the accused by making a mistake in the appreciation and evaluation of the evidence, without considering that a conviction decision should be made,
It required overturning, and since the appeals of the public prosecutor were deemed appropriate in this respect, the provisions of the 8/1 of the Law No. 5320 for this reason. It was unanimously decided on 09.06.2014 that it should be overturned pursuant to article 321 of the CMUK numbered 1412, which should be implemented pursuant to the article.
