Recurso Em Sentido Estrito 2012.51.01.020004-6

Penal e processual penal. Recurso em sentido Estrito. Estelionato judiciario (art. 171, § 3o do cp). Fato atipico. Beneficio previdenciario indevido Suspenso administrativamente e restabelecido Por determinacao judicial. Rejeicao da denuncia Com fulcro no art. 395, iii, do cpp. Recurso Desprovido. I - Hipotese em que o Ministerio Publico Federal insurge-se quanto a rejeicao da denuncia, argumentando, em sintese, que o recebimento de proventos de aposentadoria decorrentes da reativacao judicial do beneficio obtido fraudulentamente configura um novo crime de estelionato, cuja vitima continua sendo o INSS, que efetua o pagamento nao em razao de erro proprio, mas de erro do juizo civel que determinou o pagamento, devendo, pois, ser recebida a denuncia. II - Em regra, inexiste no ordenamento juridico patrio previsao legal do crime de estelionato judiciario, nao configurando crime a conduta de buscar o Poder Judiciario, eis que o direito de acao e autonomo e incondicionado. III - Evidenciada, portanto, a falta de justa causa para o prosseguimento da investigacao fundamentada no chamado “estelionato judiciario”, por absoluta falta de tipicidade legal. IV - Recurso a que se NEGA PROVIMENTO.

Rel. Des. Messod Azulay Neto

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