Theft of other people's property involves the intent to illegally turn this property in one's favor or in favor of other persons.
By the verdict of the Auezovsky District Court dated January 31, 2013, M., was sentenced under paragraph "b" of part 3 of Article 177 of the Criminal Code to 3 years in prison with confiscation of property and serving her sentence in a correctional colony of general regime. The verdict was upheld by the decision of the Appellate Judicial Board for Criminal Cases of the Almaty City Court dated April 04, 2013. By the decision of the cassation board of the Almaty City Court dated May 27, 2013, the verdict and the decision of the appellate instance remained unchanged. By the Court of M. She was found guilty of having executed loan agreements for her relative T. at her place of work in JSC "K", where she held the position of head of the legal department of the branch "A" of JSC "K", by obtaining credit funds secured by property, using forged documents. knowingly invalid transactions on forged documents, stole funds, which she disposed of at her discretion, as a result of which JSC "K" suffered property damage in the amount of KZT 8,386,217. In the future, the specified transactions with T. the court's decision declared them invalid.
The Supervisory Judicial Board of the Supreme Court, having considered the case at the request of the defense, considered that the decisions of the appellate and cassation judicial boards on criminal cases of the Almaty City Court in respect of M. are subject to cancellation on the following grounds. The conclusions of the criminal prosecution authorities and the lower court about the presence of fraud in the actions of the convicted M. and her conviction under Article 177 of the Criminal Code are not based on the materials of the criminal case. According to the criminal law, embezzlement in the form of fraud is recognized as the unlawful gratuitous seizure of someone else's property by someone guilty for their own benefit or for the benefit of others. The gratuitous seizure (conversion) of someone else's property in criminal law is understood as the free acquisition of someone else's property, without the intention of returning it or subsequent compensation in the form of providing other material assets that compensate for its cost. It is clear from the materials of the criminal case that M. by deception, expressed in the use of forged documents on the financial independence of the borrower, her relative T., with the provision of a land plot and an apartment building in the village of Aytey, Karasai district, belonging to her personally, on behalf of T., she concluded two loan agreements with JSC "K", under which she received 9,122,400 tenge. In the period from November 15, 2007 to March 14, 2008, M., in accordance with the loan agreements, deposited KZT 736,183 to the cash desk of JSC "K" to repay loans. According to the claim of T. By a court decision, the loan agreements concluded on behalf of JSC "K" were declared invalid. As a result, the amount issued by Bank M. under two loan agreements in the amount of 8,386,217 has not been returned to the Bank. Recognizing these actions as embezzlement, the lower court did not provide sufficient evidence that M., when receiving money from the Bank, had the purpose of appropriating it for free. The convicted M. denies having a goal to donate the money received on credit and explains that she took out loans for her nephew, since she herself had a loan from JSC "T". From the loan money received from JSC "K", she repaid her loan to JSC "T", the rest of the amount she spent on completing the construction of an apartment building, which, along with the land plot, was pledged by JSC "K". She believed that she would be able to repay the loans she received, but due to a number of circumstances, she was unable to do so. Does not refuse to compensate for the damage caused to the Bank, including the property that was secured. The above-mentioned explanations by M. have not been refuted by the lower court. Conclusions of the lower court that M. Initially, she had a goal of embezzlement, because she, being a lawyer, knew that the bank loan agreements on behalf of T. would be declared invalid, and the money received on the loan would remain with her, was an assumption and did not comply with the constitutional principle of presumption of innocence.
Theft of other people's property involves the intent to illegally turn this property in one's favor or in favor of other persons.
The conclusions of the lower court are also unfounded that, according to the law, the difference between causing property damage by deception and abuse of trust from fraud is that causing property damage by deception and abuse of trust is not related to the seizure of property from the owner. There are no such provisions in the criminal or other law. Causing property damage by deception and abuse of trust, that is, the crime provided for in Article 182 of the Criminal Code, from the objective side can be characterized by various ways of its commission, including with the seizure of property from the owner under various conditions of its return (retribution). In such circumstances, the judicial acts against M. They are subject to cancellation with the referral of the case for a new hearing to the court of appeal, where it is necessary to take all measures provided for by law for a comprehensive, complete and objective investigation of the circumstances of the case and the decision of a lawful and reasonable sentence.
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