SUPREME COURT 7th CRIMINAL CHAMBER MAIN FILE NO. 2011/4182, DECISION NO. 2011/15824, DECISION DATE 06.07.2011 VIOLATION OF THE BANKING LAW – DOCUMENT FORGERY – AGGRAVATED FRAUD – ELEMENTS OF THE CRIME
SUMMARY. YAPI KREDİ BANKASI A. ON THE DATE OF THE CRIME,
at the insistence of the defendant, his friend, who was responsible for the supervision and protection of the money deposited with him, the other defendant, opened a credit account on behalf of companies that were credit deposit customers of the bank, without the knowledge, request, or instruction of the company officials, issued a forged promissory note as collateral for the credit account opened in the name of one of these companies, and, in the event of embezzlement, issued forged payment orders and withdrew a total of TL 1,510,000 from the bank. Pursuant to Article 160/2 of the Banking Law No. 5411, the crime is committed through fraudulent and deceptive behavior aimed at preventing the embezzlement from being discovered, and the defendant’s actions described above constitute the crime of aggravated embezzlement.
It should be noted that since the Banking Law No. 5411 does not provide for a penalty for forgery in addition to the crime of embezzlement, when the defendant commits the act of embezzlement by preparing a false document, it should be considered as an element of the crime of embezzlement, and a conviction for the crime of forgery in the document should not be issued.
The defendants are Bekir and Ahmet K.; regarding the examination of the objections of the defendants’ defense attorneys to the conviction for embezzlement and forgery;
Considering the type and amount of the sentence imposed, it was decided to reject the defendant’s defense attorney’s request for a pre-trial interrogation, and the interrogation was conducted;
a)
Yapı Kredi Bankası A.Ş. was working as a commercial credit manager at the K… branch at the time the defendant Bekir committed the crime and was responsible for the supervision and protection of the money deposited in his/his friend, the defendant Ahmet K.’s, name. A… M… Tekstil Ltd. Şti., E… O… İnşaat A.Ş., G… O… Ltd. Şti., B… Otomotiv Ltd. Şti., and G… Çelik Ltd. Şti., all of which were credit customers of the bank, opened credit accounts in the name of the company without the knowledge, request, or instruction of the company’s officials.
Pursuant to Article 160/2 of Banking Law No. 5411, the defendant embezzled a total of TL 1,510,000 belonging to the bank by issuing forged promissory notes as collateral for the credit account opened in his name and giving forged payment instructions. According to the provision in the article, a crime committed through fraudulent and deceptive behavior to prevent the embezzlement from being discovered constitutes aggravated embezzlement; the defendants are convicted of embezzlement by means of a bet.
b)
Considering that Law No. 5411 on Banking does not contain any provision stipulating punishment for fraud in addition to the crime of embezzlement, and without taking into account that the act of preparing false documents during the embezzlement should be considered an element of the crime of embezzlement, the defendant must be convicted of forgery in writing against both defendants in the document.
In accordance with Article 8/1 of Law No. 5320, considering that the objections of the defendants’ defense attorneys are contrary to the law and that the objections of the defendants’ attorneys are valid as of this date, on 06.07.2011, it was unanimously decided to uphold the right to punishment acquired in accordance with Article 326/final of Law No. 1412 in force and to continue the defendant’s detention, taking into account the nature and characteristics of the crime.