Supreme Court - Daily Orders
M/S Dag Pvt Ltd (Formerly Known As M/S ... vs M/S Bid And Hammer Auctioneers (P) Ltd on 20 July, 2022
Bench: Uday Umesh Lalit, Sudhanshu Dhulia
1
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S).1008 OF 2022
(Arising out of SLP (Crl.) No(s).6732/2019
M/S DAG PVT.LTD.(FORMERLY KNOWN AS
M/S DELHI ART GALLERY PVT.LTD.) ..APPELLANT(S)
VERSUS
M/S BID & HAMMER AUCTIONEERS (P) LTD. ..RESPONDENT(S)
WITH
CRIMINAL APPEAL NO(S).1009 OF 2022
(Arising out of SLP (Crl.) No(s).6731/2019
PANKAJ SAHNI ..APPELLANT(S)
VERSUS
M/S BID & HAMMER AUCTIONEERS (P) LTD. ..RESPONDENT(S)
AND
CRIMINAL APPEAL NO(S).1010 OF 2022
(Arising out of SLP (Crl.) No(s).6788/2019
ABHILASHA OJHA ..APPELLANT(S)
VERSUS
M/S BID & HAMMER AUCTIONEERS (P) LTD. ..RESPONDENT(S)
AND
CRIMINAL APPEAL NO(S).1011 OF 2022
(Arising out of SLP (Crl.) NO(S).3758/2021
Signature Not Verified
DADIBA KALI PUNDOLE @ DADIBA PUNDOLE
Digitally signed by
NIRMALA NEGI
..APPELLANT(S)
Date: 2022.07.27
18:13:24 IST
Reason:
VERSUS
M/S BID & HAMMER AUCTIONEERS PVT.LTD. ..RESPONDENT(S)
2
AND
SPECIAL LEAVE PETITION (CRL.) NO(S).10330-10331/2019
M/S BID & HAMMER AUCTIONEERS (P) LTD. ..PETITIONER(S)
VERSUS
ABHILASHA OJHA & ETC. ..RESPONDENT(S)
O R D E R
CRIMINAL APPEAL NOS. 1008/2022, 1009/2022 AND 1010/2022 ARISING FROM SLP(CRL.)NOS.6732/2019, 6731/2019 AND 6788/2019
1. These matters arise out of a complaint filed by M/s. Bid & Hammer Auctioneers (P) Ltd. (hereafter referred to as the Complainant) which was filed submitting, inter alia-
(a) The Complainant is an established art gallery with enviable reputation having various clients and collectors from amongst the highest section of the Society who routinely seek the services of the Complainant in procuring valuable pieces of art. The Complainant, in the normal course of its business puts up various pieces of art in auctions which generate great interest among its clientele. The auctions conducted by the Complainant are taken as an opportunity by all the concerned to look for acquisition of rare and valuable pieces of art. 3
(b) One such auction was to be conducted by the Complainant in New Delhi on 27.06.2014. Few days before the date of auction, certain comments and insinuations were made on ‘Facebook’ page titled ‘Talk Art’, questioning the authenticity of the pieces of art put up for auction and which were part of the catalogue circulated before the auction.
(c) Alleging that these insinuations were intended and did amount to lowering the reputation of the Complainant as an art gallery and as a hub of activity where pieces of art could be sold, Complaint No. CC 6393/2015 was filed by the Complainant in the Court of Assistant Chief Metropolitan Magistrate at Bangalore.
2. The relevant portions of the complaint were-
“2. The address of the Complainant for the purpose of court notices, summons etc. is as set out in the cause title. The first accused runs as 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 a Facebook page called ‘Talk Art’ and fabricates 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 ‘Talk Art’, which was created by the first accused. 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, are involved 4 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. The eleventh (Cami Jain) accused also seems to be an important accomplice of the first accused as he has the logo of the ‘Konark Collectables’ (eleventh accused) on the website http://www.aakrititalkart.com and has made many unsavoury comments. All the remaining accused, with their comments and articles, clearly have had a nexus with a collective agenda to malign the complainant’s business enterprise at every available opportunity.
11. To the shock and consternation of the complainant, all of the accused, acting in concert, made a series of comments that intended to lower the reputation of the complainants and bloom mistrust among its clientele. The accused referred to the positive media articles and decried its content with their ludicrous comments and to start a smear campaign with a pretense of being the sole and ‘only’ torch-bearers of genuine art. In facts of 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 complainant’s 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 complainant’s auction. To the last one all the accused wrote comments without verifying 5 or examining the paintings. In fact the articles/comments made give rise to the question whether any of the accused is 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 complainant’s auction.”
3. The cognizance of the aforesaid complaint having been taken and processes being issued, applications under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘the Code’) were preferred by some of the persons/entities who were named as accused in the Complaint seeking quashing of the proceedings. It was contended that the offences punishable under Sections 499 and 500 of the Indian Penal Code (for short ‘IPC’) were not made out; and that the actions on part of said accused were protected under various exceptions to Section 499 of the IPC.
4. The submissions advanced on behalf of said accused persons were, however, rejected by the High Court vide its common judgment and order dated 19.06.2019 and the applications preferred under Section 482 of the Code were dismissed.
5. Being aggrieved, three Special Leave Petitions namely
(a) SLP (Crl.) No.6732/2019 [M/s DAG Pvt.Ltd.(formerly Known 6 As M/s Delhi Art Gallery Pvt Ltd.) Vs. M/s Bid & Hammer Auctioneers (P) Ltd.], (b) SLP (Crl.) No.6731/2019 (Pankaj Sahni Vs. M/s Bid & Hammer Auctioneers (P) Ltd.) and (c) SLP (Crl.) No.6788/2019 (Abhilasha Ojha Vs. M/s Bid & Hammer Auctioneers (P) Ltd.) have been preferred in this Court.
6. Leave granted.
7. We have heard Mr. Tarun Gulati, learned senior Advocate, Mr.Puneet Mittal, learned senior Advocate and Mr.Saurabh Agarwal, learned Advocate for the appellants in these three appeals. We have also heard Ms.Prabha Swami, learned Advocate for the Complainant in all these three matters.
8. Though, it was submitted by the learned senior counsel/counsel appearing for the appellants that their actions were in the nature of ‘fair comment’ and that they were protected by exceptions to Section 499 of the IPC, the learned counsel appearing on behalf of Pankaj Sahni and Abhilasha Ojha have fairly submitted that their clients regret the making of those statements and that if those statements had hurt the sentiments of the complainant, they tender unconditional apology. Looking to the entirety of the matters and the circumstances in which the proceedings have arisen, in our considered view, the apology expressed by 7 these two individuals must be accepted in right spirit. It would not be in the interest of everybody concerned to go ahead with these criminal proceedings.
Ms.Prabha Swami, learned Advocate appearing for the complainant has also graciously stated that the apology expressed by these two individuals should be acceptable to the Complainant and nothing more need be done in these criminal proceedings.
9. In the circumstances, we quash the criminal complaint which was initiated against these two individuals namely Pankaj Sahni and Abhilasha Ojha and allow the applications preferred by them under Section 482 of the Code.
10. That take us to the first matter concerning M/s Delhi Art Gallery Pvt Ltd. With the assistance of Mr.Tarun Gulati, learned senior Advocate, we have gone through the complaint and the documents appended thereto. The assertion made against the “other accused”, in the complaint, which are extracted hereinabove, are quite general in nature. Beyond such general assertions, nothing specific was attributed to M/s. Delhi Art Gallery Pvt Ltd.
Even then, we have gone through all the documents appended to the complaint including the Facebook page of 8 ‘Talk Art’. We are satisfied that there is nothing on record which would prima facie be indicative of the involvement of M/s. Delhi Art Gallery Pvt Ltd. in respect of the offences punishable under Sections 499 and 500 of the IPC read with offence under the Information and Technology Act.
It must be noted here that M/s. Delhi Art Gallery Pvt Ltd.is not even a member of the group who were party to ‘Talk Art’ page.
11. We, therefore, allow the appeal preferred by M/s Delhi Art Gallery Pvt Ltd. and quash the proceedings instituted against it.
Pending application(s), if any, shall stand disposed of.
CRIMINAL APPEAL NO. 1011/2022 (ARISING FROM SLP(CRL.)NO.3758/2021)
12. Leave granted.
13. This appeal challenges the order dated 24.03.2020 passed by the High Court of Karnataka, Bengaluru, in Criminal Petition No.2343 of 2018.
14. In more or less identical situation adverted to in the earlier part of the order, Criminal Complaint CC No.6392 of 2015 was filed by M/s. Bid & Hammer Auctioneers Pvt. Ltd. 9 (“Complainant” for short) in the Court of Chief Judicial Magistrate, Rural Court, Bengaluru. The complaint centered around publication of an article in a newspaper which again pertained to the issue of fake art. Three pieces of said article published in the newspaper were as under:
“(A) A city gallerist puts it in perspective when he says India consumes more Black Label than Johnnie Walker produces; the business of art is no exception. There are twice the number of paintings Van Gogh created in his lifetime spinning in the market. “Even New York’s The Metropolitan Museum of Art doesn’t know which of the Rembrandts in its collection is genuine. They bought it with the right intention and now, all are being questioned,“ says director of Pundole Art Gallery and auction house, Dadiba Pundole.
It’s a subject that saddens Delhi-based modern artist Krishen Khanna. “For as long as there has been art, there has been forgery,” he says. (B) Husain, say experts, poses a peculiar problem. Aside from his popularity that makes him a known name even on the street, the master painter was prolific. It’s estimated that there are more than 9,500 of his works in the market.
“Besides, his technique was very simple,“ says Pundole. “But he had a terrific sense of proportion and choice of colour.” Flipping through the recent Bid & Hammer catalogue, Pundole draws our attention to the 1985 selfportrait. “Even on a bad day, he wouldn’t have created this,” he says, adding that the handwriting - “let alone his signature” - in a note attached to a horses in acrylic on canvas dated ‘Dubai, 2010’ doesn’t seem to be his.
“What is the purpose of this arrow here?” asks Pundole, pointing to another horse in ink and watercolour. He uses the phrase “stupidity of the fakes” to describe an attempt to pick signature motifs but not knowing where to introduce them.
10Like Husain, SH Raza’s famous bindus, FN Souza’s nudes and, now, post the stupendous success of the Christie’s auction in December 2013, VS Gaitonde’s abstracts have been facing the brunt of copies. “Because there’s money in Gaitonde,” continues Pundole.
“Every few weeks, a Gaitonde or a work that claims to be one, crops up.” Over the last year, Pundole has received 30 Gaitondes of which only a handful have been genuine. (C) Sometimes, noted history professors, who are considered experts on a particular school of painting or artist, charge a fee of authentication. However, the art worlds finds this practice questionable. “There can’t be one authority on all art. How can one person be an expert on Gaitonde, Husain, Raza, everybody?” asks Pundole. A certificate can’t make a work of art that is not original. “The authenticity of a painting is in the work itself-how he painted, how he built that work-not in the signature,” explains Pundole.”
15. The appellant Dadiba Kali Pundole @ Dadiba Pundole approached the High Court by filing an application under Section 482 of the Code submitting inter alia:
a. The applicant is considered to be an expert in Art by various painters, sculptors and so on. He himself has been associated with a famous Art Gallery in Mumbai.
b. In his capacity as an expert in Art, a correspondent approached him and as the drift of the aforesaid three quoted pieces of the article show, the assertions made by the applicant were 11 in the nature of fair criticism and did not amount to any defamation.
c. The interview was well after the auction had taken place and as such it could not possibly be said that it was intended to harm the business prospects in said auction.
16. However, the submissions advanced on behalf of the appellant were rejected by the High Court which has given rise to the instant appeal.
17. Heard Ms.Jayna Kothari, learned senior counsel for the appellant and Ms. Prabha Swami, learned counsel for the respondent.
18. Three portions quoted above clearly show the concern expressed by the appellant as a person who had spent long years in the profession. The anxiety on part of the appellant that the market is getting flooded with fake or questionable pieces of art is quite evident. He went to the extent of saying that he himself was not certain about genuineness of some of the paintings in his possession. All that the appellant had done was to invite attention to one piece which was part of the catalogue and offered his 12 comments raising doubts about genuineness of that piece and not with regard to other pieces depicted in the catalogue.
19. In our considered view that would be nothing but fair criticism by a person who has the standing and stature of an expert in art. Viewed thus, the action on part of the appellant would not in any way be stated to be defamatory. The statements were made only in response to certain questions put by a newspaper correspondent and that too, well after the auction had taken place.
20. Considering the totality of the circumstances, in our view, the appellant is entitled to the relief as claimed before the High Court. We, therefore, allow this appeal, set-aside the view taken by the High Court and quash the proceedings insofar as the appellant is concerned.
Pending application(s), if any, shall stand disposed of.
SLP(CRL.) NOS. 10330-10331/2019
21. These petitions have been filed by M/s. Bid & Hammer Auctioneers Pvt. Ltd. (“Complainant” for short) challenging the order of the High Court to the extent it observed that some of the accused having been stationed outside Bengaluru, the appropriate procedure as contemplated under Section 202 13 of the Code had to be undertaken first before any process could be issued by the concerned Magistrate.
22. Out of two respondents, Abhilasha Ojha has already tendered apology which was referred to in the earlier part of the order. The other offender is Ashish Anand, Managing Director of M/s.Delhi Art Gallery Pvt. Ltd. The said M/s. Delhi Art Gallery Pvt. Ltd. has already been given benefit in terms of the earlier part of the order.
23. In the circumstances, even though we may not strictly be in agreement with the view taken by the High Court in quashing the entire complaint as against these two accused for want of compliance of requirements under Section 202 of the Code, we see no reason to entertain these petitions. The Special Leave Petitions are, accordingly, dismissed.
24. Mr. R. Basant, learned senior advocate appearing for M/s.Delhi Art Gallery Pvt. Ltd., submits that as accused No.1, no proceedings were initiated by his client to seek quashing of the complaint whereas other two accused who had sought such relief, namely, Abhilasha Ojha and Ashish Anand, have just now been afforded relief by this Court. It is submitted that the case of M/s. Delhi Art Gallery Pvt. Ltd. stands on a similar footing and it would only be a technical 14 formality that a formal petition on its behalf will have to be filed for the identical relief.
25. Ms. Prabha Swami, learned counsel appearing for the complainant graciously submits that similar benefit may be afforded to M/s. Delhi Art Gallery Pvt. Ltd. We therefore declare that the proceedings as against M/s. Delhi Art Gallery Pvt. Ltd. shall also stand quashed.
……………………………………………………J (UDAY UMESH LALIT) ……………………………………………………J (SUDHANSHU DHULIA) NEW DELHI;
JULY 20, 2022.
15
ITEM NO.13 COURT NO.2 SECTION II-C
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
PETITION(S) FOR SPECIAL LEAVE TO APPEAL (CRL.)NO(S). 6732/2019
(Arising out of impugned final judgment and order dated 19-06- 2019 in CRLP NO. 1037/2016 passed by the high court of Karnataka at Bengaluru) M/S DAG PVT LTD (FORMERLY KNOWN AS M/S DELHI ART GALLERY PVT.LTD.) PETITIONER(S) VERSUS M/S BID AND HAMMER AUCTIONEERS (P) LTD. RESPONDENT(S) ( IA No. 112931/2019 - EXEMPTION FROM FILING O.T. & IA No. 177530/2019 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES) WITH SLP(Crl) No. 6731/2019 (II-C) (IA No. 112906/2019 - EXEMPTION FROM FILING O.T.) SLP(Crl) No. 6788/2019 (II-C) (IA No. 113974/2019 - EXEMPTION FROM FILING O.T.) SLP(Crl) No. 10330-10331/2019 (II-C) SLP(Crl) No. 3758/2021 (II-C) (FOR EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT ON IA 62111/2021) Date : 20-07-2022 These matters were called on for hearing today. CORAM : HON'BLE MR. JUSTICE UDAY UMESH LALIT HON'BLE MR. JUSTICE SUDHANSHU DHULIA For the Parties Mrs. Prabha Swami, AOR Mr. Puneet Mittal, Sr.Adv.
Mr. Arvind Kumar Gupta, AOR Mr. Mohit Chandras, Adv Mr. Abhie Sumat Gupta, Adv.
Mr. Rishi Bhardwaj, Adv.
Ms. Suman R., Adv.
Mr. Shreeraj Singh, Adv.
Mr. R. Basant, Sr. Adv.
Mr. Rony Oommen John, AoR 16 Mr. Piyush Swami, Adv.
Mr. Arshdeep Singh, Adv.
Mr./Ms. Manu, Adv.
Mr. Tarun Gulati, Sr. Adv.
Mr. Rony Oommen John, AoR Mr. Piyush Swami, Adv.
Mr. Arshdeep Singh, Adv.
Mr. Kumar Sambhav, Adv.
Ms. Jayna Kothari, Sr.Adv.
Ms. Anindita Pujari, AOR Mr. Rohan Kothari, Adv.
Mr. Siddhartha Srivastava, Adv.
Mr. Azad Bansala, Adv.
Ms. Prakriti Rastogi, Adv.
Mr. Mohit Kaushik, Adv.
Mr. Saurav Agarwal, Adv.
Mr. Rony Oommen John, AoR Mr. Piyush Swami, Adv.
Mr. Arshdeep Singh, Adv.
Mr. Mrinal Ojha, Adv.
Ms. Kavya Pahwa, Adv Mr. Nikhil Swami, AOR UPON hearing the counsel the Court made the following O R D E R SLP(Crl.)Nos.6732/2019, 6731/2019, 6788/2019 & 3758/2021 Leave granted.
The appeals are allowed in terms of the signed order. Pending application(s), if any, shall stand disposed of. SLP(Crl) Nos. 10330-10331/2019 The Special Leave Petitions are dismissed in terms of the signed order.
Pending application(s), if any, shall stand disposed of.
(NIRMALA NEGI) (VIRENDER SINGH)
COURT MASTER (SH) BRANCH OFFICER
(Signed order is placed on the file)