Judgment of the appellant overturned due to repeated fraud

Facts

The appellant I. opened a salary account at Bank X on 24 December 1976. Between 24 December 1976 and 1 January 1977, he withdrew CHF 1,700 from the salary account, and in January 1977, a further CHF 3,350 in eight withdrawals. At the end of January, the account showed a debit balance of CHF 5,050.80. On 24 January 1977, Bank X ordered the account to be blocked. However, I. also managed to withdraw amounts of several hundred francs each in various branches in February and March.

On 7 April 1981, the Criminal Court of Appeal of the Canton of Zug found I. guilty of repeated fraud for the withdrawals before the account was blocked and sentenced him to a conditional additional sentence of 3 1/2 months.

I. filed a nullity appeal and requested the overturning of the judgment of the Criminal Court of Appeal and his acquittal.

Considerations

The Federal Supreme Court overturned the judgment of the Criminal Court. It concluded that the appellant's actions constituted a breach of good faith, but did not fulfill the element of deceit.

According to the case law, deceit is present when the perpetrator uses special machinations to deceive, when he makes mere false statements whose verification is not possible or only possible with special effort for the deceived person, or when the perpetrator prevents the deceived person from a possible verification or when he foresees according to the circumstances that the latter will omit the verification because a special relationship of trust exists.

In the present case, the appellant had not used any special deceptive machinations, and Bank X could have verified the account balance without special effort. The appellant was also not accused of deliberately making the verification…