Acquitted of the charge of aggravated fraud (Articles 640, 61, nos. 7) and 11) of the Criminal Code) “because the act does not constitute a crime.” The administrator and vice president of [X] S.p.A. were accused of “diverting,” in violation of the contract for the supply of memory cards – for which an irrevocable mandate for collection existed between the bank of [X] S.p.A. and the supplier, a Japanese multinational) – the sum of €683,650.00 for their own benefit.

The two managers had misled the debtor, […] S.p.a., a primary national telecom operator, by communicating bank details different from those contained in the mandate (and concealing the existence of that accessory agreement). The prosecution hypothesized a scheme of fraudulent negotiation where the deceived party – deceptus – (Italian telecom) did not coincide with the damaged party (Japanese multinational).

The price of the supply was therefore credited to another current account of [X] S.p.A. and then channeled into the concordat procedure, in the meantime requested by [X] S.p.A. itself, pursuant to Article 67 of the Bankruptcy Law. The Roman court adhered to the defense’s suggestion: the violation of payment terms, while constituting a civil offense and a serious breach of contract towards the Japanese multinational, did not rise to the level of fraudulent negotiation intent since the €683,650.00 was still intended for the equitable satisfaction of all creditors.

Rome Tribunal, public hearing on January 22, 2019, file of the public prosecutor n. 39285/2014 R.G.N.R. and n. 16678/2016 R.G.DIB. Final judgment.