Acórdão nº 0011196 de Tribunal da Relação do Porto, 06 de Junho de 2001
Magistrado Responsável | MARQUES SALGUEIRO |
Data da Resolução | 06 de Junho de 2001 |
Emissor | Tribunal da Relação do Porto |
Acordam na Relação do Porto: Findo o inquérito que teve lugar mediante participação criminal de JOSÉ..... contra FRANCISCO....., MARIA..... e SANDRA....., todos melhor identificados nos autos, por factos que o queixoso entendeu subsumíveis no tipo legal do crime de burla, o Ministério Público proferiu despacho de arquivamento do inquérito, nos termos do artº 277º, nº 1, do C.P.Penal, por considerar que a conduta que se indiciava integrava o crime de emissão de cheque sem provisão, p. e p. pelo artº 11º do Dec.-Lei nº 454/91, de 28 de Dezembro, conduta que, porém, referida a cheques ditos pós-datados, havia sido descriminalizada pelo Dec.-Lei nº 216/97, de 19 de Novembro, deixando de ser punível.
Notificado deste despacho, o queixoso, com vista à pronúncia dos arguidos pela prática do crime de burla, p. e p. pelo artº 217º do C.Penal, veio requerer a abertura da instrução e, do mesmo passo, a sua constituição como assistente, qualidade em que veio a ser admitido.
E, realizada a instrução, veio a ser proferida decisão instrutória de não pronúncia dos arguidos, fundada na carência de prova indiciária do crime de burla imputado e no acolhimento das razões em que assentara o despacho de arquivamento do inquérito pelo Mº Pº.
Inconformado com esta decisão, recorre o assistente, rematando a sua motivação com as conclusões seguintes: 1. O Tribunal a quo proferiu despacho de não pronúncia porque considerou que os factos participados não consubstanciam a prática de um crime de burla, sendo apenas susceptíveis de integrar o crime de cheque sem provisão.
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Porém, esse ilícito penal - cheque sem provisão - não ocorreu, porquanto estávamos perante a figura de cheques pré-datados.
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Entende o assistente que a conduta dos arguidos, a saber: - Entrega dos cheques constantes dos autos ao assistente, fazendo-lhe crer que esses títulos se encontravam validamente em circulação; - Terem consciência de que a única forma do assistente vender e entregar a mercadoria transaccionada seria contra a entrega dos mencionados cheques; - Que, ao comunicarem a instituição bancária o falso extravio e furto dos cheques, provocariam ao assistente um prejuízo patrimonial, o que veio a ocorrer e um enriquecimento ilegítimo para os próprios, consubstancia a prática, em concurso real, dos crimes de burla, p. p. no artº 217º do C.Penal e falsificação de documentos, p. p. no artº 256°, n° 1, al. b), e 3, do C.Penal.
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Os factos participados estão suficientemente corroborados pela declaração prestada pelo ora recorrente, existindo, pois, indícios suficientes da prática de tais crimes, pelo que os arguidos deviam ter sido pronunciados em conformidade.
Responderam o Mº Pº e os arguidos, argumentando no sentido do não provimento do recurso.
Nomeadamente considera o primeiro que os arguidos não podem ser pronunciados pelo crime de falsificação, já que, não sendo tal crime referido no requerimento de abertura da instrução, seria nula a decisão instrutória que por ele pronunciasse os arguidos, pois constituiria alteração substancial dos factos descritos nesse requerimento (artº 309º do C.P.Penal); e, quanto ao crime de burla, entende que inexiste nexo causal entre a conduta posterior dos arguidos - a comunicação ao banco do furto e extravio dos cheques - e a conduta do assistente geradora de...
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