The Provincial Court condemns to two years of prison the partner of a consultancy for swindling a businesswoman
The Provincial Court has sentenced one of the partners of an advisory to two years in prison for swindling a businesswoman who hired him to assist him in the start-up of the operation of a hotel in a town near Llanes (Asturias) .
In this case, the other partner of the consultancy and the administrator of the agency who, at the proposal of the condemned, took the accounts of the businesswoman but have been acquitted, also appeared as accused of fraud.
According to the account of proven facts of this ruling of the First Section of the Provincial Court, in 2007, the entrepreneur had the intention of rehabilitating a building in the Asturian town of San Roque del Acebal, near Llanes (Asturias), to initiate the exploitation of a hotel.
In order to advise him, he went to the condemned, with initials JJ.VP, whom he had previously known because he had intermediated in the sale of a home of his.
After reaching an agreement, JJ.VP and his partner lent him advice for the rehabilitation of the building and operation of the business,
Likewise, on the advice of JJ.VP, the businesswoman hired the absolved woman, who charged her 580 euros per month for her services, for tax advice and accounting from the sole administrator.
That contractual relationship was broken due to “discrepancies” arising from the fact that the businesswoman had to pay almost 4,500 euros to the Treasury for several errors of the manager in the presentation of accounts, the VAT refund or the IRPF declaration.
For their part, the two consultants charged the businesswoman two invoices for a total of almost 17,000 euros for their fees for hours worked outside the office and compensation for travel and telephone and for a study and preparation of a capital increase of the business of the businesswoman that, according to the Chamber, “was effectively carried out”.
In addition, having knowledge JJ.VP that the businesswoman had sold certain properties of his property to allocate the price of the sale to the start-up of the hotel that he intended to open in Asturias, he offered to manage the 70,000 euros obtained from these operations with the promise to return this amount plus a gain of 36,000 euros.
This amount of 70,000 euros was made available to JJ.VP through two deliveries, one of 30,000 and another of 40,000 made by bank transfer from an account opened by the businesswoman to another of the condemned in the name of counseling.
However, the ruling indicates that only JJ.VP. since he did not inform his partner of the existence of it.
In exchange for said money, and as a guarantee of return of the same and the agreed benefit, JJ.VP delivered to the entrepreneur four promissory notes, also signed by the other partner, which were not paid to their respective maturities, collecting them as the principal the amounts received and increasing them in the agreed benefits.
The entrepreneur was not returned “any amount” of the money given and the two partners of the advice offered to the businesswoman, to answer them, constitute a second mortgage in their favor on a farm owned by the partner acquitted in Marbella. This guarantee was not accepted by the businesswoman.
In addition to the prison sentence, JJ.VP has been sentenced to pay a fine of 1,440 euros and compensate the injured businesswoman in the 70,000 euros for the money she gave him to manage it.
Absolution of crimes
In this case, JJ.VP and its partner were accused of crimes of fraud, punishable insolvency and intrusion, while the manager was considered the author of the crime of fraud and intrusion – the latter was withdrawn during the trial.
However, both the JJ.VP partner and the manager are acquitted of all crimes.
According to the Chamber, regarding the first of these acquitted, the Chamber considers that it can not be condemned for fraud because both JJ.VP. as the manager acquitted acknowledged that the role of this partner “was merely secondary.”
“There is therefore no cooperation in the alleged deception,” something that, according to the Chamber, was recognized by the convicted, who said that he “did not even know the existence of the account that he had opened to receive transfers from the businesswoman .
According to the Chamber, neither he nor JJ.VP can be condemned for intrusion because “there is no evidence that both carried out activities of administrative managers or any other profession whose exercise requires to be in possession of academic or official title.”
Both have declared, and the businesswoman has “confirmed” it -said the Chamber-, that her work has been limited to advice on works or corporate matters (capital increase) and physical presence in meetings and before an administrative body, ” without stating the performance of any action as proxies or agents of the businesswoman. “
“It is true that they lack academic or official qualifications, but we insist that the work carried out does not appear as reserved for persons who possess such qualification as part of a specific professional group,” the Chamber stated in its ruling.
In addition, the Chamber affirms that the facts can not be considered as a crime of punishable insolvency -of which the private accusation accuses- because the only act generating obligations after the receipt of the money by the convicted was the offer of the second mortgage on the house from one of the partners in Marbella.
And, according to the ruling, such an act does not constitute a crime because such a mortgage is constituted to guarantee the payment of monetary debts with the banking entity that granted the mortgage loan, not also stating that it was made to reduce the possibilities of payment of the promissory notes.
As for the other acquitted, the manager, it is determined that the act of accounting for allegedly excessive bills in the concepts that were claimed to the company “does not make it a party to any crime.” “The issuance of these invoices does not constitute a criminal offense,” says the Chamber.
“She will have to be acquitted freely of the accusation that is maintained against her by both the public accusation and the private accusation, since she limited herself to providing the service for which she was hired without participating in the activity of the other accused,” says the Room.