T.R. SUPREME COURT
- Criminal Chamber
Basis : 1994/246
Decision : 1994/620
Decision Date: 22.02.1994
SUMMARY: The defendant, who is not paid; By writing more than the actual amount, the same amount in the accrual and amount payable columns, in the payrolls he issued, and adding the increase in income and stamp tax to the accrual amount in accordance with the increase made in the amount payable column in the overtime and tax refund payrolls and going from net to gross, 13,319 for checks cut according to the payrolls Money deposited as part of the normal function of the accused’s duty or under his custody and responsibility, for which he collected .941 lira from the bank and acquired property, and included a person who left the job in the additional payroll and provided that person with 124.000 liras to be paid a total of 13.442.941 liras. Since it is understood that there is no embezzlement, the crime of embezzlement does not occur. If the accused has the ability to deceive the act, it constitutes joint fraud, otherwise it constitutes misconduct.
(765 S. K. Art. 59, 202, 219)
Case: At the end of the trial of Abdülkadır, who was accused of embezzlement while he was working as a salary trustee in the tax office; 14.12.1993 day and 1993 given by the (Elazığ First High Criminal Court) regarding his conviction with 5 years of heavy imprisonment and a heavy fine of 16,834,926 liras, in accordance with Articles 202/2, 3, 59, 219/last articles of the TCK, and his permanent ban from civil service. Since the judgment numbered /39, decision numbered 1993/209 was requested by the Court of Cassation to be examined within the time limit; The case documents were examined by sending them to the Department with a notification from the Office of the Chief Public Prosecutor, and the necessary was considered:
Decision: The hearing held, the evidence gathered and shown at the place of decision, the court’s opinion and discretion expressed in accordance with the results of the investigation, rejection of other appeal objections. However;
Adding the increase in income and stamp tax to the accrual amount in accordance with the increase made in the amount to be paid column in the overtime and tax refund slips by writing the accrual and the amount to be paid more than the actual amount in the payrolls drawn up by the accused as a payroll, adding the increase in income and stamp tax to the accrual amount, According to the accounting directorate, he collected the money in return for the check from the bank and thus, with the overwritten 13,319,941 liras, H…. It has been understood that Mehmet, who left his duty at the Tax Office as of 15.3.1991 and included in the April 1991 additional payroll, acquired a total of 13.4333.941 liras by providing the payment of 124.000 liras to this person, and according to the court’s determination that the money in question was formed in this way, As long as they are not from the money deposited to the accused in accordance with the normal function of his duty or under his custody and responsibility, his actions; Establishing a written sentence without considering that it will constitute a crime of deception, not embezzlement, joint fraud if it is capable of deceiving, otherwise abuse of power,
It was unanimously decided on 22.2.1994 that the verdict was quashed, pursuant to Article 321 of the CMUK, as the request was due to these reasons, since the objections of the defendant’s attorney were deemed unlawful and unlawful.