Karnataka High Court
M/S Cart An Art vs M/S Bid & Hammer Auctioners (P ) Ltd on 19 June, 2019
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JUNE 2019
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.8692 OF 2015
C/W
CRIMINAL PETITION NO.60 OF 2016
CRIMINAL PETITION NO.1008 OF 2016
CRIMINAL PETITION NO.1036 OF 2016
CRIMINAL PETITION NO.1037 OF 2016
IN CRIMINAL PETITION NO.8692 OF 2015
BETWEEN:
M/S CART AN ART
NO B -102, MANEK KUNJ
DR S S RAO ROAD
LALBAGH MUMBAI - 12
REPRESENTED BY AUTHORISED SIGNATORY
KUNJESH PARIWAR
S/O C L SINGH
AGED ABOUT 50 YEARS ... PETITIONER
(BY SRI: S RAJASHEKAR, ADVOCATE)
AND
M/S BID & HAMMER AUCTIONERS (P ) LTD
BID AND HAMMER PREVIEW HALL
NO 11 WHITEFIELD MAIN ROAD
BANGALORE - 066
2
REP BY AUTHORISED SIGNATORY
... RESPONDENT
(BY SRI: C K NANDA KUMAR, ADVOCATE)
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C
PRAYING TO QUASH THE ISSUANCE OF PROCESS IN
C.C.NO.6393/2015 ON THE FILE OF CJM RURAL COURT,
BANGALORE, BANGALORE RURAL DIST. DATED 11.09.2015 FOR
THE OFFENCE PUNISHABLE UNDER SECTIONS 499,500 OF IPC.
IN CRIMINAL PETITION NO.60 OF 2016
BETWEEN:
1. MR. VIKRAM BACHHAWAT
AAKRITI ART GALLERY
( A UNIT OF CHISEL CRAFT PVT.LTD.)
ORBIT ENCLAVE,FIRST FLOOR,
12/3A, PICASSO BITHI (HUNGERFORD STREET),
KOLKATA-700017
2. AAKRITI TALK ART
(UNIT OF AAKRITI ART GALLERY)
ORBIT ENCLAVE,1ST FLOOR,
12/3A,PICASSO BITHI (HUNGERFORD STREET),
KOLKATA-700017
REP BY MR.VIKRAM BACCHAWAT
... PETITIONERS
(BY SRI:K.G. DEVARAJAIAH, ADVOCATE)
AND
M/S. BID AND HAMMER AUCTIONEERS (P) LTD
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956,
HAVING ITS CORPORATE OFFICE AT
BID & HAMMER PREVIEW HALL,
3
11 ,WHITEFIELD MAIN ROAD,
BANGALORE-66
REP BY ITS AUTHORISED SIGNATORIES,
MR. T.N. RAGHU / ANKUSH DADHA / APOORV DADHA
... RESPONDENT
(BY SRI: C K NANDA KUMAR, ADVOCATE)
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED 16.07.2015 PASSED
BY THE ADDL.C.M.M., AS PER ANNEXURE-A TAKING
CONGNIZANCE OF THE COMPLAINT DATED 16.07.2015 FILED BY
THE RESPONDENT UNDER SEC.200 OF CODE OF CRL.
PROCEDURE 1973 FOR THE OFFENCES UNDER SECTIONS 499,
500 OF IPC, 1960 AND CONSEQUENTLY QUASH THE
PROCEEDINGS IN C.C.NO.6393/2015 ON THE FILE OF THE
ADDL. C.M.M., BENGALURU RURAL.
IN CRIMINAL PETITION NO.1008 OF 2016
BETWEEN:
SRI PANKAJ SAHNI
ARTOHOLICS GALLERY,
F-208,NAI BASTI,
LADO SARAI,
NEW DELHI-110 030. ... PETITIONER
(BY SRI: MUNIYAPPA, ADVOCATE)
AND
M/S BID & HAMMER AUCTIONEERS (P) LTD
A COMPANY INCORPORATED UNDER THE
COMPANIES ACT,1956, HAVING ITS
CORPORATE OFFICE AT:
BID & HAMMER PREVIEW HALL,
4
11,WHITEFIELD MAIN ROAD,
BANGALORE-560 066
REPRESENTED BY ITS AUTHORIZED SIGNATORIES,
MR T N RAGHU,
MR ANKUSH DADHA &
MS APOORVA DADHA
... RESPONDENT
(BY SRI: C.K.NANDAKUMAR, ADVOCATE)
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C
PRAYING TO QUASH THE ORDER DATED 11.09.2015 PASSED IN
PCR NO. 387/2015, (PRODUCED AT ANNEXURE-A) ON THE FILE
OF THE IST ADDL. CHIEF JUDICIAL MAGISTRATE, BANGALORE
AGAINST THE PETITIONER IN C.C.NO. 6393/2015.
IN CRIMINAL PETITION NO.1036 OF 2016
BETWEEN:
SMT ABHILASHA OJHA
MAJOR,
DIRECTOR,
DELHI ART GALLERY,
NO.11, HAUZ KAUS VILLAGE,
NEW DELHI - 110 016. ... PETITIONER
(BY SRI: MUNIYAPPA, ADVOCATE)
AND
M/S BID & HAMMER AUCTIONEERS (P) LTD.,
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT 1956, HAVING ITS
CORPORATE OFFICE AT
BID & HAMMER PREVIEW HALL,
11, WHITEFIELD MAIN ROAD,
BANGALORE - 560 066
REPRESENTED BY ITS AUTHORIZED SIGNATORIES,
5
MR. T N RAGHU,
MR. ANKUSH DADHA &
MS APOORVA DADHA.
... RESPONDENT
(BY SRI: C K NANDAKUMAR, ADVOCATE)
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C
PRAYING TO QUASH THE ORDER DATED 11.01.2016 PASSED IN
PCR NO.387/2015 (PRODUCED AT ANNEXURE-A) ON THE FILE
OF THE I ADDL. CHIEF JUDICIAL METROPOLITAN MAGISTRATE,
BENGALURU AGAINST THE PETR. IN C.C.NO.6393/2015.
IN CRIMINAL PETITION NO.1037 OF 2016
BETWEEN:
SRI ASHISH ANAND
MAJOR, DIRECTOR,
DELHI ART GALLERY,
NO. 11,
HAUZ KAUS VILLAGE,
NEW DELHI 110016
... PETITIONER
(BY SRI: MUNIYAPPA, ADVOCATE)
AND
M/S BID & HAMMER AUCTIONEERS (P) LTD.,
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT 1956, HAVING ITS
CORPORATE OFFICE AT
BID & HAMMER PREVIEW HALL,
11, WHITEFIELD MAIN ROAD,
BANGALORE - 560 066
REPRESENTED BY ITS AUTHORIZED SINGATORIES,
MR. T N RAGHU,
6
MR. ANKUSH DADHA &
MS APOORVA DADHA.
... RESPONDENT
(BY SRI: C K NANDAKUMAR, ADVOCATE)
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C
PRAYING TO QUASH THE ORDER DATED 11.09.2015 PASSED IN
PCR.NO.387/2015, (PRODUCED AT ANNEXURE-A) ON THE FILE
OF THE IST ADDL. CHIEF JUDICIAL MAGISTRATE, BANGALORE
AGAINST THE PETITIONER IN C.C.NO.6393/2015.
THESE CRIMINAL PETITIONS COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
Petitioners herein are aggrieved by the orders dated 16.07.2015 and 11.09.2015, whereby the learned Magistrate has taken cognizance and issued summons to the petitioners to answer the charges for the offence under section 499 Indian Penal Code punishable under section 500 Indian Penal Code.
Heard learned respective counsels for petitioners and learned counsel for respondent/complainant. Perused the records.
2. Learned counsel for petitioners would contend that the complaint lodged against the petitioners is false and 7 baseless. The allegations made therein do not constitute the ingredients of the offence under section 499 Indian Penal Code. The complainant has not made any specific allegations against the petitioners and has not reproduced the imputations alleged to have been made by the petitioners. Learned Magistrate has failed to consider these aspects and has mechanically issued summons to the petitioners without application of mind. Further, he contended that the cognizance taken by the learned Magistrate is hit by Section 199(5) of Cr.P.C, inasmuch as, cognizance of the allege offence has been taken by the learned Magistrate beyond six months as prescribed therein and thus the petitioners sought to quash the proceedings initiated against them.
3. Refuting the above submissions, learned counsel for the complainant, by referring to the averments made in the complaint pointed out that specific allegations are made against the petitioners as well as other accused persons to the effect that all the accused persons in connivance with each other, in order to malign the name and reputation of the complainant in 8 the business circle and to cause damage to his business, published defamatory comments on facebook page immediately before the scheduled date of auction and in the process committed the offence under section 499 Indian Penal Code and hence, the learned Magistrate has rightly taken cognizance of the alleged offence and has issued summons to the petitioners to face trial for the said offences.
4. In answer to the contentions raised by learned counsel for the petitioners that specific imputations are not reproduced in the complaint, learned counsel for the respondent has referred to the proposition laid down by the Hon'ble Supreme Court in the case of BALRAJ KHANNA AND OTHERS vs. MOTI RAM reported in 1971(3) SCC 399 and with reference to para 25 thereof emphasized that the complaint cannot be thrown out on mere ground that actual words spoken or the utterances made have not been reproduced in the complaint and thus sought to dismiss the petitions.
Considered the rival submissions and perused the records with reference to the averments made in the private complaint. 9
5. The complainant claims to be an auction house based in Bengaluru established by the family associated with the reputed Dadha Group of Companies, who have been in business for over 100 years. According to the complainant, it enjoys a rich legacy that is enviable and was incorporated by persons of impeccable character and reputation. The board of directors and advisory panel of the complainant includes Mr. Charu Sharma (a well- known public persona and art auctioneer), H. H. Gaj Singh II (the Maharaja of Jodhpur and convener of Marwar INTACH), Dr. Mohan Lal Nigam (former director of the Salarjung Museum) and also one Savita Apte(World renown Modern and Contemporary Indian Art Specialist) and continues to have many more eminent persons. The complainant was established in 2007 by Mr. Maher Dadha and Mr. Charu Sharma, among others, Mr. Dadha an Industrialist and art collector. He has also published a book 'Views of India - Art of the British Raj'. The complainant has established an enviable reputation with various clients and collectors from among the highest echelons of society, who routinely seek out the complainant's services in procuring or 10 selling valuable pieces of art. In fact, the complainant started out with the objective of developing the Indian art and auction market beyond paintings by introducing the concept of generalist and specialist auctions, covering not only modern and contemporary art but company school paintings and drawings, miniatures, jewellery, English and Indian silver, antique swords and daggers and other artifacts as well. The complainant established itself as India's pioneering multi-category auction house and is known to have offered notable works by prominent Indian artists such as Raja Ravi Varma, Antonio Xavier Trindade, F. N. Souza and M.F. Hussain, alongside with works of iconic English artists such as J.M.W. Turner, William Hodges and French Illustrator Etienne Drian amongst others. The decorative section have had works by Rene Lalique, Mappin and Webb, Dan Dailey (Daum) and T. Manickam Chetty & Sons to name a few.
5. The case made out by the complainant in the private complaint is that first accused runs an art gallery called "Aakriti Art Gallery" and is the editor of a monthly art magazine called "Art Etc." He is also the author of facebook page called "Talk 11 Art" and fabricated defamatory comments and articles in his magazine against the complainant. The second accused who runs an Art Gallery called "Rahul & Art" also made defamatory comments on the facebook page called "Talk Art", which was created by the first accused. All other accused persons are group members of "Talk Art" (Facebook Group). The Talk Art group also has a website http://www.aakrititalkart.com promoted by the first accused. All of them, who came together hand in glove, were involved in making libellous comments against the complainant on the facebook page with the intention of lowering the image of the complainant with the motive of damaging a business competitor who was making swift prowess in the field of Indian art auctions. The first accused was also a director of, "Emami Chisel Art Pvt. Ltd", a rival auction house that has failed to conduct auctions after 2008. All the remaining accused, with their comments and articles, clearly had a nexus with a collective agenda to malign the complainant's business enterprise at every available opportunity.
6. In paras 11 and 12 of the complaint, it is stated thus:- 12
11. To the shock and consternation, all of the accused, acting in concert, made a series of comments that intended to lower the reputation of the complainant and bloom mistrust among its clientele. The accused referred to the positive media articles and decried its contents with the ludicrous comments and to start a smear campaign with a pretense of being the sole and "only" torch-
bearers of genuine art. In fact the first, fifth and other accused collectively boasted that the adverse media articles were published due to their influence and even admitted that the first accused was responsible for negative articles that was published in his magazine "Art Etc" in the past. All the comments and articles published were baseless as none of the accused took the trouble to physically verify the art works and accompanying documents or attend the preview of the auction catalogue and clarify their questions with the complainants panel of expert scholars. Only the seventh accused (Mr. Ganesh Pratap Singh) fixed an appointment to visit the preview but failed to turn up and instead went to the media with concocted stories about the authenticity of the artworks in the complainants auction. To the last one all the accused wrote 13 comments without verifying or examining the paintings. In fact the articles/comments made give rise to the question whether any of the accused are even qualified or experienced to pass judgments on any works of art. The first accused even made the following statement "did I say that I am an expert?"
when he was asked to offer his explanation for condemning the expertise of the complainant. However, he continued making further comments, as though he was an expert, and soliciting more such unwarranted comments against the complainants auction.
12. The first accused Mr.Vikram Bacchawatt's defamatory comments were quoted in some of the main daily newspaper articles like "The Hindu"
article dated 29.06.2014, in "DNA" article dated 06.07.2014 in "Millennium Post" article dated 06.07.2014 and in the "Indian Express" article dated 06.07.2014. The articles too were vicious in nature, written on the basis of the comments made by the first accused. The fourth accused, Mr.Samindranath Mazumdar's defamatory comments were quoted in some of the daily newspapers like "Indian Express" article dated 19.06.2014, in "Pioneer" article dated 20.06.2014, 14 in "Bangalore Mirror" article dated 27.06.2014, in "Millennium Post" article dated 06.07.2014, in "Times of India" (Bangalore) article dated 20.07.2014. The seventh accused. Mr. Ganesh Pratap Singh's defamatory comments were quoted in some of the daily newspapers such as "Bangalore Mirror" article dated 27.06.2014, in "Mumbai Mirror" article dated 27.06.2014, in "Millennium Post" article dated 06.07.2014, in "Times of India"
article dated 29.06.2014. The accused had not bothered to physically verify the paintings on auction by the complainant and without doing so, has made misconceived comments without substantiating with doing so, has made misconceived comments without substantiating with documentary evidence or clarification with the experts of the complainant who are well known and had authenticated the works. The comments and unverified statements use words like "fake" "copy"
"counterfeit" etc., were all directed at the complainant. The fifth accused (Mr.Johnny M.L) who is also associated with Art Etc (a publication by the first accused) authored a derogatory article in "Cart An Art" blog dated 30.06.2014, which carried the head line "Aahh- Faking Ït". This created doubt in the mind of readers as many unjust and palpably 15 false references were made to the paintings in the auction. For instance in one instance the article compares a painting from the website of Bid & Hammer to a painting taken from NGMA's catalogue and aims at projecting them to be the same by mis-representing the quote of Prof. Rajeev Lochan, Director of NGMA, who has categorically stated that the work in possession of the Complainant "needs to be verified and authenticated". He has even used a comparative tenor by using the phrase "reputed auction houses like Christies and Sothebys" as though the complainant's auction house is not reputable. One of the slanderous accusations of the article reads "Fake market, today it is said that is a thriving underground business.", with the intention of creating doubts in the minds of the readers about the authenticity of works on auction by the complainant. All accused have made comments against the complainant's auction house to air their unfounded opinions with intent to besmirch the expertise of the complainant's qualified team and jeopardize the success of the auction. Furthersome, the first accused Mr.Vikram Bacchawat, a supporter and promoter of Mr. Samindranath Majumdar, have both made a series of posts on his facebook page 'Talk Art' decrying 16 the expertise of the auction house and proclaiming the works as fakes. This corroborates that Mr.Bacchawat, a business rival, was hand-in-glove with the media, which created a lot of adverse publicity against the complainant. Under the influence of these accused, media persons published unfavourable articles to further curtail the success of the complainant's auction scheduled on 27.06.2014.
13. In addition, first accused Mr. Vikram Bacchawat posted the comments on the "Talkart" page using the word "Same" and stating that the original painting is at NGMA. He also commented on the complainants auction 'Significant Indian Art' held on 27.06.2014 saying, "important works from the estate of Nandalal Bose?" which is not only misleading but also insinuates that the complainant has either stolen the painting from NGMA or has possession of a duplicate version of the painting at NGMA. This false and vilifying character of the comments deceived the readers, especially due to the usage of "Same" painting. Moreover, to the utter shock and dismay of the complainant, the image of the painting in the complainants auction was compressed and projected to be of the same 17 size as the one at the NGMA with a scandalous subtitle 'The Same Nandalal hangs NGMA, goes under hammer'- this was done despite the first accused being fully aware that the size of the two paintings were very different. Naturally, with this misrepresentation and distortion of facts, any reader will assume that the painting in possession of a public institution is bound to be the original, whereas the one with a private auction house such as the complainant, is likely to be a fake one. The allegations continued to pour in as yet again, on 20.06.2014 the first accused reposted defaming comments as follows "it would have been perfect for Bid & Hammer, which is all set to celebrate 100 years of its existence with a grand art auction, had the artworks being auctioned were original! just days before the mega art auction, the authenticity of few of works on sale is being questioned. An exact copy of eminent artist Nandalal Bose's Woman Sitting under a Tree, which is in the list of items to be auctioned, is said to be with the National Gallery of Modern Art (NGMA) as well. It is not an only controversial work." An article based on his accomplice Mr. Samindranath Majumdar's false statements appeared in the daily news paper Pioneer under the headline of "What's real and 18 what's not?". The first accused posted on the facebook page "Talk Art" on 18.06.2015 referring to the Millennium post article which is itself baseless "Rabindranath Tagore's sketch to go on auction on 27 June is fake: Experts" for which the fifth accused made more defamatory comments about the paintings, succeeding by creating doubt in the readers' mind. These comments give the reader the impression that the complainant's entity in unqualified and is a dealer in fake art and paintings.
7. No-doubt, it is true that the complainant has not specified the imputations with reference to each of the petitioners/accused, however, the complaint is lodged on the premise that all the petitioners/accused being rival business houses joined together and in connivance with each other have made defamatory comments in the face book pages. The innuendoes and insinuations highlighted by the petitioners in the complaint, in my view, squarely attract the offence under Section 499 Indian Penal Code. In the light of the case set up by the complainant that the said imputations were made by the petitioners in collusion with each other, in my view, non-19
mentioning of specific imputations by each of the individual, cannot be a factor to throw out the complaint. A wholesome reading of the complaint prima-facie disclose the ingredients of Section 499 Indian Penal Code punishable under Section 500 Indian Penal Code by each of the petitioners. Learned magistrate on recording the sworn statement of the respondent/complainant and on considering the documents produced by the complainant at Exs-C1 to C5 which include offending publication has rightly directed summons to the petitioners. In view of the above discussion, the impugned order does not warrant interference by this Court. As a result, I do not find any merit in the challenge made by the petitioners.
8. Insofar as the issue of limitation is concerned, section 199(5) of Cr.P.C. provides for limitation of six months only in respect of offence falling under Chapter XXI of Indian Penal Code as mentioned in sub-section (2) of Section 199 Cr.P.C., None of the allegations made against the petitioners fall within the ambit of Section 199(2) of Cr.P.C. As a result, the bar contemplated in Section 199(5) of Cr.P.C. is not applicable to the facts of this 20 case. Hence, the contentions raised in this regard is rejected.
Consequently, all the petitions are dismissed.
9. Having regard to the nature of the offence, the trial court shall not take any coercive steps against the petitioners until their appearance, as the petitioners have undertaken to appear before the trial court on the next date of hearing.
Sd/-
JUDGE *mn/-