Theft of other people's property by deception and abuse of trust, committed repeatedly, on a large scale

Judicial acts were changed with the termination of the proceedings on certain episodes due to the absence of corpus delicti in the actions of the convicted person. According to the verdict of the court No. 2 of Ust-Kamenogorsk dated November 16, 2011, Sh. was sentenced under paragraph "b" of part three of Article 177 of the Criminal Code of the Republic of Kazakhstan to 6 years in prison with confiscation of property, based on part six 58 of the Criminal Code of the Republic of Kazakhstan, according to the totality of crimes, by absorbing a less severe punishment with a more severe one, 6 years of imprisonment with confiscation of property, with serving the sentence in a correctional colony of general regime, was finally appointed. It was decided to collect from Sh. in favor of D., at the expense of compensation for material damage, 3,327,500 tenge, state duty – 33,275 tenge and procedural costs to the state revenue – 14,598.55 tenge. Sh. was found guilty of theft of other people's property by deception and abuse of trust, committed repeatedly, on a large scale. The verdict was left unchanged by the decisions of the appellate and cassation judicial boards. The Supervisory Judicial Board for Criminal Cases of the Supreme Court of the Republic of Kazakhstan has changed the judicial acts issued in the case: criminal proceedings on episodes of embezzlement of S. and B. terminated due to the absence of corpus delicti in her actions; appointed by Sh. The punishment was reduced to 3 years in prison.

In the rest of the judicial acts held in the case were left unchanged due to the following. Sh. was charged with committing embezzlement of funds on a large scale by deception and abuse of trust of S. in the amount of 3,258,000 tenge, D. – 3,327,500 tenge, B. – 1,876,680 tenge. According to the episode in relation to S., the court found that in 2007, due to financial difficulties, Sh. She borrowed 258,000 tenge from S., who worked for her as an accountant at that time, and then 3,000,000 tenge. However, Sh. I couldn't pay off the debt in the promised time and wrote a receipt with. for 4,447,112 tenge with a promise to repay the debt. With this receipt, S. applied to the Ust-Kamenogorsk City Court, which approved the settlement agreement by a ruling dated March 4, 2009.

According to paragraph 19 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan "On judicial practice in cases of embezzlement" dated July 11, 2003 No. 8, obtaining property subject to fulfilling an obligation can be qualified as fraud only if the perpetrator, at the time of taking possession of this property, had the intention to appropriate it and did not intend to fulfill the accepted N. S. wrote a receipt 8 months after receiving the loan, and also fully acknowledged her debt in court. In addition, having failed to pay the debt, S. proposed. the premises of her store are partially leased and she gave me the keys to it. These facts indicate that the convict had no intention of embezzling funds from S. A similar situation developed in the episode with respect to B., since his debt to her in the amount of 1,876,680 tenge Sh. She did not deny it and admitted it in a civil court.

According to the Ust-Kamenogorsk City Court ruling of September 12, 2008 between B. and Sh. A settlement agreement was approved, according to which the latter undertook to pay B. a debt in the amount of 1,876,680 tenge. In order to execute it, the bailiff arrested and handed over to B. the commercial equipment belonging to Sh. in the amount of 525,000 tenge. According to the episodes of embezzlement of funds by S. and B., the court equated the failure to fulfill a civil obligation to a crime. Sh. did not deny the debt to S. and B. and paid as much as possible. The court rulings on the approval of an amicable agreement between the convicted and the victims that have entered into legal force are a circumstance that precludes the proceedings, since when approving the amicable agreement, it was explained to the parties that a second appeal to the court on a dispute between the same parties, on the same subject and on the same grounds is not allowed.  Consequently, on the basis of paragraph 2 of the first part of Article 37 of the Criminal Procedure Code of the Republic of Kazakhstan, the proceedings on the episodes of embezzlement of funds of victims S. and B. are subject to termination due to the absence of corpus delicti in the actions of the convicted person. Despite the fact that at the preliminary investigation and at the court hearing, Sh. she did not admit guilt in the charge, her guilt in committing fraud against D. is fully confirmed by the totality of evidence fully and comprehensively examined at the court session, namely: the testimony of D., witnesses U., A., Zh. and E., protocols of confrontations between the convict and the above-mentioned persons, protocols of the seizure of receipts, expert opinion No. 101 dated January 20, 2011

There is no reason to doubt the reliability of the testimony of the above-mentioned persons, since their testimony is stable and consistent with each other. Termination of the proceedings due to the absence of the actions of Sh. the composition of the crime according to the episodes in relation to the victims S. and B. significantly reduces the volume of the initial charge and indicates a lower degree of public danger of the crime committed. In such circumstances, the supervisory judicial board for Criminal Cases of the Supreme Court of the Republic of Kazakhstan considered that the sentence imposed on the convicted person should be reduced to the minimum period provided for by the sanction of the incriminated article.

 

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