Fraud and multiple forgery of documents through delivery of forged share certificates; dismissal of the appeal of the appellant against conviction and sentencing

Facts

[C. AG] , represented by the appellant [A.] , acquired on 30 September 2014 all 1'000 shares of [D. AG] , whose owner was the parcel in [V.] . On the same day it sold 333 shares each in one certificate to two persons and transferred one share to the board member [E.] . 333 shares remained with [C. AG] .

On 9 February 2016 the appellant sold 50% of the shares (500 bearer shares) to the private claimant [B. AG] , which was interested in a stake in the development. He handed over share certificates Nos. 5 to 10. The private claimant transferred CHF 50'000.-- and CHF 267'000.-- (set off against current account credit) to accounts of companies controlled by the appellant or his family members; the funds were immediately consumed. The board of directors refused to recognise the private claimant as a shareholder because the certificates were forged.

The lower court, the Upper Court of the Canton of Aargau, Criminal Court, 1st Chamber, by judgment of 10 May 2021 (SST.2020.21) convicted the appellant of fraud and multiple forgery of documents and sentenced him to 24 months' unconditional imprisonment and to damages of CHF 50'000.--, and referred the remaining civil claims to civil proceedings.

Before the Federal Supreme Court the appellant requested acquittal, dismissal of the civil claims, alternatively a supplementary penalty of 10 months to the judgment of the Upper Court of 8 July 2019, and subsidiarily remittal. He complained, among other things, of violation of the principle of accusation, arbitrariness, in dubio pro reo, lack of deceit, lack of pecuniary damage and violation of the principle of asperation or sentencing.

Considerations

On the forgery of documents: Share certificates are documents within the meaning of Art. 110 para. 4 SCC. The lower court was entitled to assume without arbitrariness that [E.] had not authorised the use of his scanned signature; the appellant's complaints are appellatory and do not satisfy the requirements of reasoning (Art. 97 para. 1, 106 para. 2 FSCA). Under Art. 14 para. 2 CO, a facsimile signature is permissible only for securities in large numbers, which does not apply to ten certificates. The certificates are therefore not genuine (Art. 251 no. 1 SCC). The appellant had professional experience and knew of the lack of authorisation, so intent is present.

On multiple commission: Each certificate required the insertion of a separate number, so this is not merely one act of forgery with several printouts; the conviction for multiple forgery of documents does not violate federal law.

On the principle of accusation: The indictment describes the facts (Art. 9 para. 1, Art. 325 para. 1 lit. f, Art. 350 para. 1 CrimPC) with sufficient precision; the appellant, represented by counsel, was able to base his defence on it.

On fraud: The deception lay in the statement that [C. AG] held 100% of the shares, and in the implied representation that the private claimant would become a shareholder, by delivering forged certificates. Deceit results from the use of non-genuine documents; the forgery was not recognisable with the least care. Failure to report under Art. 697i f. CO is immaterial. The private claimant paid the purchase price of CHF…