Karnataka High Court
Mr. Dadiba Kali Pundole vs M/S Bid And Hammer Auctioneers Pvt ... on 24 May, 2023
Bench: M.Nagaprasanna
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CRL.P No. 230 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 230 OF 2021
BETWEEN:
MR. DADIBA KALI PUNDOLE
@ DADIBA PUNDOLE,
DIRECTOR,
PUNDOLE ART GALLERY AND
PUNDOLE'S AUCTION HOUSE,
369, DR. DADABHAI NAOROJI ROAD,
MUMBAI - 400 001.
...PETITIONER
(BY SMT. APARNA MEHROTRA, ADVOCATE FOR
SRI. ROHAN KOTHARI, ADVOCATE)
AND:
M/S. BID AND HAMMER AUCTIONEERS PVT. LTD.,
Digitally signed AUCTIONEERS PVT. LTD.,
by PADMAVATHI
BK A COMPANY INCORPORATED UNDER
Location: HIGH THE COMPANIES ACT, 1956.
COURT OF HAVING ITS CORPORATE OFFICE AT
KARNATAKA
NO.11, WHITEFIELD MAIN ROAD,
BANGALORE - 560 0666
REPRESENTED BY ITS DIRECTOR.
...RESPONDENT
(BY SRI. KUMAR RAM C.M., ADVOCATE FOR R1)
THIS CRL.P IS FILED U/S.482 OF CR.P.C PRAYING TO
SET ASIDE THE IMPUGNED ORDER DATED 29.08.2017
(ANNEXURE-A) PASSED BY THE LEARNED ACJM, BANGALORE
RURAL DISTRICT IN C.C.NO.6392/2015 TO THE EXTENT THAT
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CRL.P No. 230 of 2021
IT DIRECTS THE PETITIONER NOT TO LEAVE THE COUNTRY
TILL DISPOSAL OF THE CASE AND TO APPEAR ON EVERY DATE
OF HEARING TILL THE DISPOSAL OF THE CASE IN
C.C.NO.6392/2015 PENDING BEFORE THE LEARNED ACJM,
BANGALORE RURAL DISTRICT, BANGALORE.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court seeking the following
prayers:
"A. Quash and set aside the impugned
Order dated 29.08.2017 (ANNEXURE-A) passed by
the Ld.ACJM, Bangalore Rural District in
C.C.No.6392/2015 to the extent it directs the
Petitioner not to leave the country till disposal of the
case and to appear on every date of hearing till the
disposal of the case in C.C.No.6392/2015 pending
before the Ld. ACJM, Bangalore Rural District; and
B. Pass any such other order(s) or directions
as this Hon'ble Court deems fit in the circumstance
of this case and in the interests of justice and
equity."
2. Heard the learned counsel Smt.Aparna Mehrotra
appearing for the petitioner.
3. The challenge was to an order dated 29.08.2017 by
the concerned Court in C.C.No.6392/2015 which had directed
the petitioner not to leave the Country till the disposal of the
case and to appear on every date of hearing, till the disposal.
CRL.P No. 230 of 2021
4. The proceedings in C.C.No.6392/2015 was carried
to the Apex Court by the petitioner in SLP (Crl.) No.6732/2019.
The Apex Court sets aside the very complaint that is the
subject matter of C.C.No.6392/2015 by the following order:
"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. ("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
CRL.P No. 230 of 2021
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.
Like 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:
CRL.P No. 230 of 2021
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 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 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.
CRL.P No. 230 of 2021
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."
5. In the light of the Apex Court setting aside the very
foundation of registration of crime, further proceedings would
naturally tumble down. Since the entire proceedings are set at
naught, no further orders need be passed in the case at hand
as the prayer in the petition is rendered unnecessary, in the
light of the judgment of the Apex Court (supra).
6. Accordingly, the petition is disposed as having
rendered infructuous.
Sd/-
JUDGE
VM
