Acórdão nº 041882 de Supremo Tribunal de Justiça (Portugal), 23 de Outubro de 1991
Magistrado Responsável | SA NOGUEIRA |
Data da Resolução | 23 de Outubro de 1991 |
Emissor | Supremo Tribunal de Justiça (Portugal) |
N Privacidade: 1 Meio Processual: REC PENAL.
Decisão: PROVIDO PARCIAL.
Área Temática: DIR CRIM - CRIM C/PATRIMONIO / CRIM C/SOCIEDADE / TEORIA GERAL.
Legislação Nacional: CP82 ART30 N2 ART228 ART230 N1 ART313 ART401 ART402. D 13004 DE 1927/01/12 ART24. L 23/91 DE 1991/07/04 ART14 N1.
Sumário : I - A conduta da arguida que, depois de ter passado cheques para pagamento de mercadorias compradas, comunica ao banco sacado a falsa indicação de extravio dos cheques, para obstar ao respectivo pagamento, não se configura como enquadravel em qualquer das previsões do tipo legal de falsificação previstas pelo artigo 228 do Codigo Penal, porque a lei exige mais que uma simples declaração falsa (falsidade intelectual), ja que esta corresponde a um acto diverso do da falsificação de documento, e e tratada pela lei como crime nas hipoteses previstas nos artigos 401, 402 e seguintes do Codigo Penal, nas quais tambem se não enquadra a conduta da arguida ao prestar aquela inveridica informação de extravio dos cheques. II - A conduta referida so podera constituir a pratica de um crime de burla desde que se demonstre a existencia de um dado comportamento do agente, de caracter astucioso e enganatorio que, como tal, tenha sido a causa determinante da entrega pelo lesado dos bens que o agente recebeu, como exige o artigo 313 do Codigo Penal, não traduzindo tal actividade de engano na prestação da falsa informação ao Banco por esta ultima não ter tido qualquer efeito na criação do proposito, por parte do lesado, de fornecer a mercadoria vendida a arguida. III - A referida conduta da arguida corresponde a pratica do crime de emissão de cheque sem provisão porque, embora no rigor dos principios, não pareça poder entender-se que sejam a mesma realidade uma "falta de...
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