Facts
The appellant was the sole signatory managing director of Y. AG, a general contractor that constructed single-family homes. He concluded general contractor work contracts in the name of Y. AG with the spouses B. and C. for the construction of single-family homes. The financing was provided through construction loans from Bank D. in Basel.
In order to bridge liquidity bottlenecks of Y. AG, the appellant demanded several advance payments from the spouses B. and C. contrary to the contractual provisions, although the relevant work had not yet been completed or not even started. He made false statements to the spouses about the progress of construction and exerted pressure on them. He used the payments obtained in this way for private withdrawals or for other liabilities of Y. AG, which were not related to the house construction.
The High Court acquitted the appellant of the charge of misappropriation to the detriment of the spouses A., as the advance payments had not been entrusted to him in this case due to the lack of a general contractor account.
Considerations
The lower court considered that the advance payments of the spouses B. and C. had been entrusted to the appellant, as he had received the funds with the obligation to use them exclusively for the payment of costs in connection with the construction of the respective single-family home. This was evident from Clause 3a of the construction trust agreements, in which the appellant…