Mandado De Segurança Nº 2007.04.00.040986-3/rsMandado De Segurança Nº 2007.04.00.040986-3/rs

Processual penal. Mandado de segurança. Crimes contra o sistema financeiro. Desvio de recursos de investidores. Compra de ações. Direitos societários. Poderes do juízo criminal. Devido processo legal. Ordem concedida.

Rel. Des. Élcio Pinheiro De Castro

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Mandado de segurança contra decisão, em ação penal, que determina o afastamento de membro do conselho fiscal de empresa cujas ações foram em parte, adquiridas pelo acusado mediante recursos desviados de terceiros. Liminar deferida para revogar a medida por extrapolar os parâmetros da ação penal pois atinge a administração de pessoa jurídica não vinculada ao arresto das ações.

Rel. Des. Élcio Pinheiro De Castro


Cuida-se de mandado de segurança, com pretensão liminar, impetrado por IDERCI DA SILVA ROCHA, contra decisão proferida pelo MM. Juiz da 1ª Vara Federal Criminal de Porto Alegre/RS, nos autos da ação penal nº 2007.71.00.009038-3. Conforme se depreende dos documentos constantes do mandamus, o Ministério Público aviou denúncia em desfavor de JOSÉ ALCEU CAMPOS DALENOGARE, JÉFERSON BOLZAN TURCHIELO e JOÃO VICENTE DA SILVA e, pela suposta prática das condutas tipificadas nos arts. 4º, 5º e 16 da Lei nº 7.492/86, enquanto gestores da empresa INVESTNORTE CORRETORA DE VALORES MOBILIÁRIOS E CÂMBIO LTDA. (fls. 09/26). No curso do referido processo, o julgador monocrático determinou, dentre outras medidas, a indisponibilidade das ações da empresa SULTEPA CONSTRUÇÕES S.A. que fossem titularizadas pelos co-réus (fls. 28/30). Noticiando os assistentes da acusação (fls. 37/8) que JOSÉ ALCEU DALENOGARE teria, no exercício dos direitos societários relativos àquela pessoa jurídica, eleito o impetrante para integrar o Conselho Fiscal da firma, o magistrado a quo ordenou fosse esse último destituído de tal cargo, nomeando o liquidante extrajudicial da INVESTNORTE para substituí-lo. O decisum foi lavrado nas seguintes letras: “FACTA CORRETORA DE SEGUROS E REPRESENTAÇÕES LTDA. e OUTROS, admitidos como assistentes de acusação na presente ação penal, noticiam que o réu JOSÉ ALCEU DALENOGARE, no exercício dos direitos conferidos pelas ações adquiridas com recursos dos investidores da INVESTNORTE, teria nomeado pessoa de sua confiança para exercício do cargo de Conselheiro Fiscal junto à SULTEPA S.A. Requerem, em face disso, a suspensão dos direitos de acionista do referido réu (fls. 1241/1242). O denunciado JOSÉ ALCEU CAMPOS DALENOGARE e a empresa INVESTNORTE CVMC LTDA., além de outros denunciados nestes autos, tiveram decretado o seqüestro (arresto) de todos os bens nos autos 2007.71.00.009039-5, inclusive de ativos financeiros e participações societárias, considerando os diversos indícios de que estariam operando instituição financeira sem autorização do BACEN e de que estariam desviando recursos de aplicadores/investidores da corretora em proveito próprio. De acordo com a Verificação Especial realizada pelo BACEN na corretora INVESTNORTE, como referido na decisão de bloqueio, o modo de operação adotado era o seguinte (fls. 129/53): 'O cliente, atraído pelas altas taxas oferecidas, preenchia sua ficha cadastral e fechava o negócio, entendendo que estava realizando uma aplicação em renda fixa, com taxa pré-determinada e data conhecida para o resgate, ou em ações de empresas negociadas na Bolsa. A seguir, efetuava o depósito do valor a ser aplicado na conta corrente da Investnorte CVMC Ltda. nos bancos Bradesco e, principalmente, Banrisul, recebendo uma nota de corretagem relativa a sua aplicação e uma senha para consulta ao seu extrato através do sítio da corretora na internet (...). Ocorre, contudo, que as notas de corretagem que eram entregues aos clientes quando da realização de suas aplicações, descrevendo operações tanto no mercado de opções com estratégias para obtenção de renda fixa (taxa) quanto compra e/ou venda de ações no mercado a vista, eram geradas, manualmente, em planilhas Excel, a partir das informações repassadas pelo operador João Vicente Silva ao funcionário da custódia, que as digitava. As operações listadas nessas notas não resultaram necessariamente em operações na Bolsa, nem em nome dos próprios clientes, como carteira própria. Ou seja, a Investnorte CVMC Ltda., apesar de ter realizado diversas operações de compra e venda de ações no mercado à vista e de compra e venda de opções no mercado de opções, nenhuma dessas operações tinha necessariamente correspondência com aquelas mencionadas nas notas de corretagem emitidas para seus clientes (...).“ Como relatado, os clientes efetuavam os depósitos dos valores correspondentes às suas aplicações nas contas correntes da Investnorte CVMC Ltda. no Banrisul, principalmente, e no Bradesco, e a partir daí, esses recursos eram utilizados para diversas finalidades, entre elas, compras de ações da Sultepa e outros tipos de aplicações em bolsa. E mais, grande parte desses recursos foi transferida das contas correntes da Investnorte para as contas correntes do Sr. José Alceu Campos Dalenogare, também no Banrisul, principalmente, e no Bradesco. Essas transferências ficaram evidentes a partir da análise e comparação dos registros feitos no razão contábil (602/808) e dos extratos das contas bancárias envolvidas (fls. 809/992).' Os recursos utilizados para aquisição de participação acionária em nome de JOSÉ ALCEU DALENOGARE e da INVESTNORTE junto à SULTEPA correspondem, portanto, aos aplicadores dessa instituição (vítimas dos fatos denunciados na presente ação penal). Acrescente-se que a INVESTNORTE teve recentemente decretada sua liquidação extrajudicial (fl. 1159), o que o impediria de exercer qualquer direito acionário junto à SULTEPA também em nome dessa empresa. Por outro lado, de acordo com informações prestadas pela SULTEPA em atendimento à requisição judicial de fls. 1276/1278, item IV, JOSÉ ALCEU não apenas nomeou pessoa para exercer cargo junto ao Conselho Fiscal desta empresa, como também vem recebendo dividendos, mesmo após a decretação do seqüestro (fls. 1310/1311). (...). No entanto, JOSÉ ALCEU DALENOGARE não possui legitimidade para exercitar quaisquer direitos acionários ou receber dividendos de ações da SULTEPA, seja: a) pelos fundamentos das decisões que decretaram o seqüestro (arresto) de bens e ativos da INVESTNORTE e de JOSÉ ALCEU; b) por se tratar de consectário natural desse bloqueio; c) em virtude da liquidação extrajudicial da INVESTNORTE; d) porque os recursos empregados para aquisição dessas ações teriam sido desviados de terceiros. No que tange à nomeação de conselheiro, acrescento a tais motivos o fato de que esse ato se reflete inclusive sobre o interesse das vítimas no ressarcimento do dano, na medida em que o exercício de função dentro do Conselho Fiscal pode vir a gerar conseqüências nas atividades dessa empresa e causar eventual depreciação patrimonial. Consigno ainda que o fato tomará contornos de especial gravidade caso JOSÉ ALCEU tenha de alguma forma recebido parte ou a totalidade dos dividendos derivados das ações registradas em seu nome - o que, devido ao bloqueio das contas em seu nome somente lograria com saque em dinheiro ou indicação de contas em nome de terceiros. Ante todo o exposto, determino a suspensão, de imediato, do pagamento de dividendos a JOSÉ ALCEU, bem como destituo a pessoa por ele nomeada para exercício de cargo junto ao Conselho Fiscal da Sultepa (o qual vem, inclusive, recebendo R$ 1.246,00 mensais pela função de conselheiro, v. fls. 1315/1317). Todo e qualquer valor devido a JOSÉ ALCEU CAMPOS DALENOGARE ou à empresa INVESTNORTE CVMC LTDA. em virtude de participação acionária junto a essa empresa deverá ser depositado na conta da INVESTNORTE, bloqueada por este Juízo. Outrossim, destituo Iderci da Silva Rocha do Conselho Fiscal da Sultepa e nomeio o liquidante extrajudicial, Sr. Sadi Zanotto (fl. 1159), para atuar em seu lugar. Os valores devidos a título de pró-labore deverão reverter em favor do patrimônio em liquidação da INVESTNORTE, para futuro ressarcimento de credores e pagamento do liquidante (...)“. Face a tanto, restou ajuizado o presente mandamus (fls. 02/26). Sustenta o Impetrante, em síntese, que a decisão 'extrapola os parâmetros da ação penal', pois 'atinge pessoa não-vinculada ao expediente em tela'. Aduz, também, ter sido eleito não pelo co-réu JOSÉ ALCEU DALENOGARE, mas por Assembléia Geral da SULTEPA CONSTRUÇÕES LTDA., como representante dos sócios preferenciais sem direito a voto. Por esse motivo, requer a concessão liminar da ordem, e sua posterior confirmação pela Turma para suspender os efeitos da decisão impugnada. Percuciente análise do caso demonstra, ab initio, a presença dos elementos autorizadores da tutela de urgência. Com efeito, FERNANDO DA COSTA TOURINHO FILHO, discorrendo sobre as medidas assecuratórias, assim leciona: “Embora não adotemos a figura da parte civil no Processo Penal, como ocorre na Itália, na França e em várias legislações, permitindo-se, destarte, a satisfação do dano na própria esfera penal, o legislador pátrio, entretanto, autoriza à vítima do crime ou a quem legalmente a represente requerer, na sede penal, medidas cautelares visando-lhe à satisfação. A essas providências, que visam a acautelar os interesses do prejudicado com a prática da infração, o CPP denomina medidas assecuratórias. Praticamente são as mesmas previstas no CPC: seqüestro, arresto, hipoteca legal. Realizada a providência assecuratória e uma vez proferida sentença penal condenatória com trânsito em julgado, os autos do incidente devem ser remetidos ao juízo cível competente, conforme determina o art. 143 do CPP.“ (Manual de Processo Penal, 4ª ed., 2002, p. 380/381). Conforme se depreende, o arresto de bens móveis, dentre as outras constrições de natureza cautelar, tem caráter patrimonial, pois objetiva garantir, nos termos do artigo 140 do Estatuto Penal Adjetivo, a ação civil ex delicto e o pagamento da reprimenda pecuniária e despesas processuais. Inclusive, no caso sub judice, a autoridade impetrada determinou a indisponibilidade das ações da empresa SULTEPA CONSTRUÇÕES S.A. titularizadas pelos co-réus da ação penal, com o fim de “garantir a reparação do dano e outros eventuais efeitos de sentença criminal condenatória, tais como pagamento de multa e custas“ (fl. 29). Como é cediço, os títulos societários das companhias mercantis enfeixam duas espécies de direitos: os primeiros, de ordem patrimonial, pertinentes à distribuição periódica dos dividendos, além de serem representativos de quota do capital social, dos bens e créditos da empresa; os segundos, de cunho não-pecuniário, referem-se à prerrogativa de participação, maior ou menor, na gestão da pessoa jurídica. Assim, as ações de uma sociedade anônima representam, para seus titulares, não apenas cártulas mercantis de valor monetário, que de forma alguma se confundem, em sua plena acepção, com outros institutos comerciais como as letras de câmbios, notas promissórias e duplicatas. Embora também negociáveis, os títulos que ora se analisa atribuem aos seus detentores, em determinadas circunstâncias, o poder de influenciar nos rumos e decisões da empresa. Portanto, a indisponibilidade desses bens, conforme operou-se no caso sub judice, pode incidir apenas sobre os aspectos financeiros das ações (tal como a vedação dos réus de receberem parcelas dos lucros e demais vantagens pecuniárias) mas não àqueles relativos à gestão da companhia. Entendimento contrário resultaria em inobservância da ratio iuris dos institutos previstos nos artigos 125 a 144 do CPP. Dessa forma, ao menos em primeira análise, não há como obstar que os co-réus exerçam faculdades inerentes à administração da SULTEPA CONSTRUÇÕES S.A., tais como elegerem parte dos membros de seu Conselho Fiscal, nos termos estabelecidos pela Lei n 6.404/76 (Lei das Sociedades Anônimas) verbis: “Art. 161. A companhia terá um conselho fiscal e o estatuto disporá sobre seu funcionamento, de modo permanente ou nos exercícios sociais em que for instalado a pedido de acionistas (...). § 4º Na constituição do conselho fiscal serão observadas as seguintes normas: a) os titulares de ações preferenciais sem direito a voto, ou com voto restrito, terão direito de eleger, em votação em separado, 1 (um) membro e respectivo suplente; igual direito terão os acionistas minoritários, desde que representem, em conjunto, 10% (dez por cento) ou mais das ações com direito a voto (...)“ Da mesma forma, prima facie, refoge à competência do juízo penal imiscuir-se na gestão de pessoa jurídica estranha à persecutio criminis, sem saber se estaria diretamente vinculada aos supostos delitos, bem como interferir em liqüidação extrajudicial, regulada pela legislação financeira, de outra empresa, investindo seu liquidante em novas atribuições, prerrogativa essa do Banco Central, nos termos do artigo 16 da Lei nº 6.024/74. Assim, ao menos em primeiro exame, descabe a nomeação, pelo juízo, de substituto para o cargo de IDERCI. A autoridade tida por coatora fundamentou tal decisum no fato da INVESTNORTE, relacionada às práticas em tese criminosas, encontrar-se sob intervenção, circunstância essa que 'impediria JOSÉ ALCEU DALENOGARE de exercer qualquer direito acionário junto à SULTEPA CONSTRUÇÕES SA.' (fl. 33). Ocorre que as ações dessa última pessoa jurídica, utilizadas pelo co-réu para, em sua Assembléia Geral, alçar o impetrante ao cargo de conselheiro fiscal, não pertencem à INVESTNORTE, mas sim ao próprio denunciado, a título particular, conforme demonstram os documentos de fls. 40/46. Sem embargo da possibilidade de que futura sentença condenatória venha a reconhecer o desvio de recursos da INVESTNORTE, em benefício do patrimônio pessoal dos réus, isso não tem, ao menos em exame preliminar, o condão de permitir que se considerem, já de imediato, as participações societárias dos denunciados em outras empresas, como sendo de propriedade da indigitada firma. Frente o exposto, presentes os requisitos legais, defiro a liminar para determinar a suspensão dos efeitos da decisão impugnada no que pertine à destituição de IDERCI DA SILVA ROCHA do Conselho Fiscal da SULTEPA CONSTRUÇÕES LTDA., até o julgamento do presente mandamus pelo Colegiado. Solicitem-se informações à digna autoridade impetrada, que as prestará no prazo de 10 (dez) dias. Após, abra-se vista dos autos à douta Procuradoria Regional da República. Intimem-se. Publique-se. Porto Alegre, 27 de novembro de 2007.

 

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