SUPREME COURT 7. THE MAIN NO. OF THE CRIMINAL DEPARTMENT.2011/4182, DECISION NO.2011/15824, THE DATE OF THE DECISION.06.07.2011 VIOLATION OF THE BANKING LAW-FORGERY OF DOCUMENTS-QUALIFIED EMBEZZLEMENT–ELEMENTS OF THE CRIME
SUMMARY. YAPI KREDI BANKASI A. ON THE DATE OF THE CRIMESh. AT THE INSISTENCE OF THE DEFENDANT, HIS FRIEND, THE OTHER DEFENDANT, WHO IS RESPONSIBLE FOR SUPERVISION AND PROTECTION OF THE MONEY DEPOSITED TO HIM, OPENED A CREDIT ACCOUNT WITHOUT THE KNOWLEDGE, REQUEST AND INSTRUCTIONS OF COMPANY OFFICIALS ON BEHALF OF COMPANIES THAT ARE BANK’S OVERDRAFT CUSTOMERS, ISSUED A FAKE NOTE AS COLLATERAL FOR A CREDIT ACCOUNT OPENED ON BEHALF OF ONE OF THESE COMPANIES, WITHDREW A TOTAL OF 1,510,000 TL FROM THE BANK BY ISSUING FAKE PAYMENT INSTRUCTIONS IN THE EVENT THAT HE EMBEZZLED; 160/2 OF THE BANKING LAW NO. 5411. IN ACCORDANCE WITH THE PROVISION IN THE ARTICLE, THE CRIME IS COMMITTED WITH FRAUDULENT, DECEPTIVE BEHAVIOR AIMED AT ENSURING THAT THE EMBEZZLEMENT IS NOT REVEALED, AND THE AFOREMENTIONED ACTIONS OF THE ACCUSED CONSTITUTE THE CRIME OF QUALIFIED EMBEZZLEMENT.
IT SHOULD BE NOTED THAT SINCE THERE IS NO REGULATION IN THE BANKING LAW NO. 5411 THAT IN ADDITION TO THE CRIME OF EMBEZZLEMENT, THERE IS ALSO A PENALTY FOR THE CRIME OF FORGERY, THE DEFENDANT MUST BE CONSIDERED AS AN ELEMENT OF THE CRIME OF EMBEZZLEMENT WHEN ORGANIZING FALSE DOCUMENTS WHEN COMMITTING ACTS OF EMBEZZLEMENT, AND NO CONVICTION CAN BE MADE FOR THE CRIME OF FORGERY IN THE DOCUMENT.
The defendants are Bekir and Ahmet K. as for the examination of the appeal made by the defendants’ defense attorneys for the conviction established for embezzlement and forgery crimes;
According to the type and amount of the sentence imposed, it was decided that the defense counsel of the defendant refused the request for a trial examination and the examination was carried out;
a) Yapı Kredi Bank A. On the date of the accused Bekir’s crime, Yapı Kredi Bank A.Sh. He is working as a commercial credit director at the K… branch and has the responsibility of supervision and protection over the money deposited to him /his friend defendant Ahmet K.with the perseverance of A… M… Tekstil Ltd., one of the bank’s overdraft customers. Şti., E… O… Construction Inc.Sh., G…O… Ltd. Şti., B… Automotive Ltd. Şti. G… Steel Ltd., which has opened a credit account on behalf of the company without the knowledge, request and instructions of the company authorities. Şti. 160/2 of the Banking Law No. 5411, in which the defendant embezzled a total of TL 1,510,000 belonging to the bank by issuing fake promissory notes as collateral for the credit account opened in his name, by issuing fake payment instructions. in accordance with the provision in the article, the crime is committed with fraudulent, deceptive behavior aimed at ensuring that the embezzlement is not revealed, the mentioned actions constitute the crime of qualified embezzlement, the defendants are convicted of committing the crime of simple embezzlement in writing with a bet,
b) given that there is no regulation in the Banking Law No. 5411 that in addition to the crime of embezzlement, there will also be a penalty for the crime of fraud, the defendant must be convicted of forgery in writing about both defendants in the document, without taking into account that the acts of editing false documents when committing acts of embezzlement should be considered as an element of the crime of embezzlement,
8/1 Of Law No. 5320 on defendants who do not have an appeal against the provision (VIOLATION), since the appeals of the defendants’ defense lawyers are considered to be contrary to the law and the appeals of the defendants’ lawyers are considered to be in place as of this date. it was unanimously decided on 06.07.2011 to preserve the right gained in punishment in accordance with Article 326 / last of the CMUK No. 1412 in force in accordance with the article, and to continue the state of detention of the accused, taking into account the qualification and nature of the crime, on 06.07.2011.
