Recurso Em Sentido Estrito N. 0013114-40.2011.4.01.3400/df

Penal e processual penal. Estelionato. Art. 171, § 3º, do código penal. Denúncia rejeitada. Princípio da insignificância. Aplicação. Impossibilidade. Fato formal e materialmente típico. Recurso ministerial provido. 1. Inaplicável o princípio da insignificância na espécie, à medida que um dos bens jurídicos tutelados e, na hipótese, violado, fora a moral - o dever de lealdade à Administração, ou seja, a probidade e fidelidade do funcionário público no desenvolvimento de suas atividades e não apenas o patrimonial (financeiro/econômico). 2. Sendo o fato formal e materialmente típico, e existindo ofensa ao bem protegido pela norma penal, não há como ser aplicado o referido princípio. 3. Recurso ministerial provido, para receber a denúncia, à vista do disposto no art. 41 do CPP, ausentes, assim, as hipóteses do art. 395, determinando o regular processamento da causa.

Rel. Des. Hilton Queiroz

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