Petition to the Investigator for termination of the criminal case
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To the investigator of the SB UP of the Yenbekshikazakh district of the DP of the Almaty region, police captain A.K. Kakhimzhan.
Almaty region, Esik, Tokatayev str., No. 105.
from the Defense lawyer: Galymzhan Turlybekovich Sarzhanov
Law and Law Law Firm
BIN 201240021767
79/71 Abylai Khan Ave., office 304, Almaty.
info@zakonpravo.kz / www.zakonpravo.kz
+ 7 727 578 57 58; +7 708 578 57 58.
in the interests of: K.E.N.
IIN 8.
Almaty region, ye., ul. T. No. 46/5.
The petition
on termination of the criminal case
In the proceedings of the SB UP of the Yenbekshikazakh district, a criminal case is being investigated registered in the ERDR No. 221940031000829 on the grounds of a criminal offense provided for in art.190 of the Criminal Code of the Republic of Kazakhstan in relation to K.E.N.
As part of the pre-trial investigation of the case, it was established that an application was submitted to the UP of the Yenbekshikazakh district from IP A ... and IP G ... on the grounds of a criminal offense provided for in art. 190 of the Criminal Code of the Republic of Kazakhstan.
On February 1, 2023, the investigator of the SB UP of the Yenbekshikazakh district of the DP of the Almaty region, police captain Kakhimzhan A.K., having reviewed the materials of the pre-trial investigation No. 221940031000829, qualified the act of the suspect K.E.N. under art. 190 part 4 paragraph 2 of the Criminal Code of the Republic of Kazakhstan.
Dear investigator, we do not agree with the initiation of a criminal case against the defendant and consider the decision to recognize E.N. Kovalenko as a suspect and the qualification of her act under art. 190, part 4, paragraph 2 of the Criminal Code of the Republic of Kazakhstan unfounded, since for each fact there are contracts, civil court decisions on debt collection, as well as enforcement proceedings.
According to the episode with N.S.N.:
Purchase and sale agreements No. 24/05-2021, No. 23/05-2021 dated 05/06/2021 were concluded between N.S.N. and IP "." represented by K.E.N. According to the Agreements, the seller undertakes to transfer to the buyer's ownership "fine-borned white goat wool" in the amount of 2,300 kg at a price of 1,500 tenge without VAT per 1 unit of goods. The buyer made the payment in full in the amount of KZT 3,450,000.
In this dispute, N.S.N. filed a lawsuit with the District court No. 2 of Almaly district of Almaty. On August 6, 2021, the Judge of the District court No. 2 of the Almalinsky district of Almaty, B.E.D., having considered, in a simplified (written) procedure, the civil case on the claim of N.Sh.N. to IP., represented by K.E.Nikolaevna for the recovery of the amount and penalty, the Court decided to satisfy the Statement of Claim. As of today, the court's decision has entered into force and has been fully implemented. That is, as of today, the applicant N.Sh.N. has been reimbursed in full.
Based on the episode of PC "GULDEN":
A purchase and sale agreement No. 338 dated October 3, 2018 was signed between TOO "." and PC "G.".
In accordance with the terms of the Contract, the Seller is obliged to transfer the goods to the Buyer in the assortment and on time according to the specification. According to the specification, the product is a stock of MM 106 in the amount of 30,000 pieces of 80tg per unit. The cost of the goods under the Contract was 2,400,000 tenge.
The seller, for his part, delivered the goods according to the terms of delivery, and the Buyer paid the amount in full and accepted the goods.
Subsequently, the Seller, referring to the fact that the delivered goods were of inadequate quality, PC "G." filed a lawsuit for debt collection.
On December 5, 2019, the Specialized Interdistrict Economic Court of the Almaty region, the presiding judge Abdrakhmanov A.M., having considered the civil case No. 1912-19-00-2/4589 on the claim of PC "G." to TOO." for debt collection in the amount of 2,400,000 tenge, penalties in the amount of 240,000 tenge, representative expenses in the amount of 200,000 tenge and the state The Court decided to satisfy the plaintiff's claim in the amount of 79,200 tenge. As of today, the court's decision has entered into legal force and enforcement proceedings have been initiated on the basis of the writ of execution.
According to the episode with A.M.M.
On March 01, 2021, the parties concluded a purchase and sale agreement No. 13/02-2021 (hereinafter referred to as the agreement), where the main subject is the purchase and sale of planting material (hereinafter referred to as the product), specified in Appendix No. 1. The cost of the goods under the contract was 450,000 tenge. Payment under the contract is made in advance before the beginning of the autumn period. The buyer deposited the first tranche in the amount of 340,200 tenge. Thus, the buyer received the goods in the appropriate quantity for the paid amount of 340,200 tenge. Subsequently, on June 17, 2021, having paid the remaining amount in the amount of 109,800 tenge under the contract, I received the second part of the goods. However, the seedlings that the buyer purchased gave battle due to non-compliance with agricultural technologies. Accordingly, he filed a lawsuit in court.
On March 24, 2022, the Enbekshikazakh District Court of the Almaty region, Judge A.B.O., having considered the civil case No. 1940-22-00-2/89 on A.m.M.'s claim to LLP. for the recovery of the amount owed and for the recovery of penalties, the Judge decided to partially satisfy A.m.M.'s claim.
According to the episode with TOO "."
On June 21, 2021, the Judge of the specialized interdistrict Economic Court of the Pavlodar region, I.Y.R., having considered, in simplified (written) proceedings, the civil case on the claim of "." LLP to "." LLP for debt collection, the Judge determined to approve the settlement agreement concluded between "UPNK-PV" LLP and "." LLP. about debt collection. The court found that between the parties to the contract No. 22\04-2021 dated April 29, 2021 for the supply of planting material, according to the annex to the contract.
We also disagree with the investigator's argument that the supply and sale contracts were imaginary, since the contracts concluded with K.E.N. were not recognized by the court as invalid and imaginary.
Dear Prosecutor, we disagree with the charges against my client. My client has no previous criminal record, has not been brought to criminal responsibility, has a permanent place of residence, and his identity has been established. The defendant does not intend to hide from the criminal prosecution authorities or the court, or to obstruct an objective investigation of the case or its trial in court.
The investigator in the Resolution indicates that E.N. Kovalenko concluded a contract for the supply of goods with the Sole proprietor dated 03/14/2022 and 03/24/2022, having no planting materials and unable to fulfill her contractual obligations. The investigator also claims that K.E.N., out of self-interest, after concluding imaginary transactions, received sums from IP Aidan and transferred them to the bank account of her manager, K.A.Alexandrovna, to spend them on personal needs.
We do not agree with the arguments of the investigator, as the arguments are unfounded and unsubstantiated, i.e. they are not supported by anything. The supply and sale agreements concluded with IP Aidan were not imaginary, were not declared invalid and imaginary by a civil court. The contracts were not executed properly due to force majeure circumstances. The funds received from the sole proprietor.... are used for turnover, i.e. for the purchase of necessary goods. Thus, the funds received for the fulfillment of contractual obligations were used for turnover.
The arguments of the Resolution are actually aimed at re-evaluating the conclusions drawn from the applicants' statements, do not contain facts that would affect the validity and legality of the pre-trial investigation of the criminal case, or would refute the conclusions of all the interrogation protocols and protocols of the confrontation, and therefore we consider them untenable, since they cannot serve as a basis for qualifying the suspect's act according to 190, part 4, paragraph 2 of the Criminal Code of the Republic of Kazakhstan.
We also disagree with the response of the Institute of Botany of Phytointroduction dated 10/20/2022, since the Republican State Enterprise on the right of economic introduction "Institute of Botany and Phytointroduction" of the Committee of Forestry and Wildlife is not evidence of the absence of the act or the imperfection of the act of the defendant. The body conducting the criminal process has no right to attach factual data to the materials of the criminal case that is not relevant for its resolution.
According to Article 1 of the Law of the Republic of Kazakhstan "On the Prosecutor's Office", the Prosecutor's Office, on behalf of the State, carries out, within the limits and forms established by law, supreme supervision over the observance of legality in the territory of the Republic of Kazakhstan.
By virtue of Article 5 of the Law, the Prosecutor's Office exercises supreme supervision (hereinafter referred to as supervision) over legality.
According to 179 of the Criminal Procedure Code of the Republic of Kazakhstan, which stipulates that applications, reports or reports of a criminal offense on violations based on non-fulfillment or improper execution of civil law transactions made in writing and not recognized by the court as invalid, imaginary or pretended are not subject to registration.
In accordance with paragraphs 14, paragraph 6, Article 78 of the Criminal Code of the Republic of Kazakhstan, a witness entitled to protection has
the right to file petitions concerning his rights and legitimate interests.
Article 99 of the CPC of the Republic of Kazakhstan provides that participants in criminal proceedings have the right
to apply to the person conducting the pre-trial investigation with petitions for the production of procedural actions or the adoption of procedural decisions in order to establish the circumstances relevant during the criminal process, to ensure the rights and legitimate interests of the person who filed the petition or the person they represent. The application is subject to review and resolution immediately after its application. In cases where an immediate decision on the application is not possible, it must be resolved no later than three days from the date of the application.
In accordance with Article 24 of the Criminal Procedure Code of the Republic of Kazakhstan, the investigator and the inquirer are obliged to take all measures provided by law for a comprehensive, complete and objective investigation of the circumstances necessary and sufficient for the proper resolution of the case.
On the basis of the above and in accordance with Article 179 of the Criminal Procedure Code of the Republic of Kazakhstan,
ask you:
Terminate criminal case No. 221940031000829 at the stage of pre-trial investigation in relation to the suspect K.E.N., upon the commission of an offense under art. 190 of the Criminal Code of the Republic of Kazakhstan;
To respond to the application within the prescribed time limits.
With respect,
Lawyer: Sarzhanov G.T.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
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