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Issues Decided: Whether an arbitrator subject to a confidentiality agreement entered in one arbitration is considered “disinterested” in a subsequent arbitration when appointed by the same party in both and where the issues are the same or similar. Whether a court may remove an arbitrator for partiality or misconduct in an arbitration before a final award has issued?
In two separate cases in the Northern District of Illinois decided within a less than two weeks of each other, Trustmark moved to disqualify the other party’s arbitrator and for other relief. In the first case Trustmark was successful but in the second it was not. Both decisions have been appealed.
In Trustmark v. John Hancock, the first case, Hancock initiated arbitration in 2002 after Trustmark refused to honor billings associated with Hancock’s retrocessional business. The issue was whether the parties intended such business to be covered. The contract specified that all arbitrators were to be disinterested in the outcome of the arbitration. During the arbitration the parties entered into a Confidentiality Agreement regarding the documents and testimony of the case, as well as the award. However, the Confidentiality Agreement, itself, did not provide for arbitration. The panel issued an award which determined that the business was covered. The Court entered an order confirming the award and its confidentiality pursuant to the Confidentiality Agreement.
Subsequently, Trustmark disputed a new billing and Hancock initiated another arbitration. Hancock appointed the same arbitrator who had served on the first panel. At the organizational meeting, Trustmark questioned Hancock’s arbitrator about his ability to honor the Confidentiality Agreement entered in the first arbitration. He stated that while he “‘’would scrupulously abide by confidentiality’ he might find it ‘hard to segregate, difficult to deal with’ particular knowledge” he had acquired during the first proceeding, which Trustmark’s arbitrator and the umpire in the second arbitration lacked. Nonetheless, Trustmark did not object to his appointment.
During the hearing Hancock moved to authorize the use of materials from the first arbitration so that the parties could avoid relitigating whether retrocessional business was covered. Over Trustmark’s objection, with Hancock’s arbitrator and the umpire voting in favor, the panel issued an interim award which “‘extend[ed] and accept[ed] the confidentiality of the [F]irst [A]rbitration’” to Trustmark’s arbitrator in the second arbitration, as well as the umpire.
Later in the hearing, Hancock moved to bar Trustmark from relitigating certain matters, which Hancock argued were resolved in the first arbitration, including the issue of whether the contracts covered retrocessional business, With Trustmark’s arbitrator again objecting, the panel by majority vote granted Hancock’s motion.
At this point Trustmark filed an action for a preliminary injunction. In an opinion granting relief the Court considered Trustmark’s motions (1) to enjoin the panel from resolving disputes over the Confidentiality Agreement on the ground that it was not subject to arbitration; and (2) to remove Hancock’s arbitrator because he was no longer disinterested as required by the reinsurance contract. The basis for this motion was that he had breached the Confidentiality Agreement, infected the panel by participating in the deliberations on the issue of extending the Confidentiality Agreement and had served as Hancock’s party appointed arbitrator in the first arbitration.
In granting relief, the Court first rejected Hancock’s assertion that the challenge to it’s arbitrator’s partiality was premature, as the 7th Circuit, in Duthie v. Matria Healthcare, Inc., 540 F.3d 533 (7th Cir. 2008), had affirmed a pre-award injunction where the contract did not provide for arbitration of a specific dispute at issue. Here, Trustmark was not alleging partiality under the FAA but breach of the Confidentiality Agreement, which lacked an arbitration clause.
by breaching the Agreement, [Hancock’s arbitrator] had become a fact witness not subject to examination. We typically operate under the presumption that judges and arbitrators can disregard what they already know. This is a strong presumption with regard to arbitrators since, due to the non-binding [sic] nature of arbitration, they must routinely determine whether or not to consider an earlier arbitration in the course of a subsequent one.
However, Hancock’s arbitrator had rebutted the presumption by his statements at the organizational meeting in which he expressed doubts about segregating information from the first arbitration and dealing with the other panel members who did not have such knowledge. Further, the arbitrator’s hypothetical doubts were actually realized in in the second arbitration.During a conference he recounted his recollection of the first arbitration to dispute the account by one of the parties of what had occurred therein. Noting that an award may be vacated for arbitrator misconduct, the Court found that Trustmark “had demonstrated a strong likelihood of success on the merits” on it’s claim to disqualify.
As to whether the contract claim regarding the Confidentiality Agreement was subject to arbitration, the Court also found that Trustmark had shown a strong likelihood of success in showing there was no agreement to arbitrate. It found the question of whether the parties had agreed to submit a particular dispute to arbitration was for the Court to decide under Duthie v. Matria Healthcare, 535, F. 2d, 909, 915 which followed Howsam v. Dean Witter Reynolds Inc.,537 U.S. 79, 82 (2002). It observed that the Confidentiality Agreement lacked an agreement to arbitrate. Relying on Industrial Electronics Corp. Of Wisconsin v. iPower Distribution Group, Inc., 215 F.3d 677, 681 (7th Cir. 2000) the Court determined the arbitration clause in the reinsurance contract was not a bar to litigation because the Seventh Circuit had held that where one agreement contains an arbitration clause but the other does not, issues arising under the agreement lacking the clause may be litigated “‘ even where the two agreements are closely intertwined’”. The Court concluded that “ [i]t is difficult to see how the Confidentiality Agreement relates to the performance of the Underwriting Agreement of the validity of the cession”.
In Trustmark v. Clarendon, the second case, Clarendon reinsured Trustmark under a series of treaties in 1997 and 1998. The first, a quota share contract, “VQS I”, was effective on June 1, 1997 and renewed effective June 1, 1998, “VQS II”. The parties also entered into excess of loss agreements, referred to as “the 1998 XOL Treaties” (“XOL”). In all instances they agreed that in the event of arbitration, the arbitrators would be disinterested. After Trustmark demanded arbitration on both the XOL and VQS II treaties, Clarendon appointed Mary Ellen Burns as its arbitrator in both disputes.
In the XOL arbitration Clarendon moved consolidate ,which Trustmark opposed. The panel denied the motion. At the time, the VQS II panel had yet to convene. During the XOL proceedings, which culminated in a corrected final award on March 20, 2009, the parties, as well as the panel executed a standard ARIAS Confidentiality Agreement.
In August, 2009, Burns contacted Trustmark’s arbitrator to select an umpire for the VQS II dispute. Trustmark objected to her service as Clarendon’s arbitrator citing concerns with her duties under the XOL Confidentiality Agreement and whether she was disinterested as required by the VQS II arbitration clause.
It then filed an action in which it sought a preliminary injunction to disqualify Burns as an arbitrator in the VQS II dispute, find Clarendon in breach of the XOL Confidentiality Agreement for appointing her, and enjoin Clarendon from participating in the arbitration if Burns remained on the panel. Clarendon moved to dismiss the complaint, appoint an umpire and to order Trustmark to return to arbitration.
Regarding Trustmark’s claim that Burns must be be removed because she was not disinterested as required by the arbitration clause, the Court found that Trustmark was unlikely to succeed on the merits because under the FAA, courts could “vacate an arbitration due to arbitrator “misbehavior” after an award had been issued, but lacked the power to remove an arbitrator on a bias or partiality challenge before then. Citing a Seventh Circuit opinion in a similar case, he noted this result could not be avoided by couching the challenge as a breach of contract claim.
Turning to the Confidentiality Agreement, the Court first rejected Trustmark’s contention that Clarendon’s appointment of Burns had breached the Confidentiality Agreement by repudiating it.Trustmark had only described its concerns regarding a future breach of confidentiality but had failed to prove repudiation by pointing to a statement by either Clarendon or Burns that they had intended to breach the Agreement.
It then rejected Trustmark’s argument that a breach was inevitable because the parties had acknowledged that the XOL decision would be an important part of the VQS II arbitration.Trustmark maintained that it followed that Burns would “inevitably disclose confidential information regarding the decision making process of the 1998 XOL Treaties Arbitration Panel”. The Court found that Trustmark had “failed to detail any mechanism or facts making this disclosure ‘inevitable’ such that [Clarendon’s] umpire is unable to perform without breaching the Confidentiality Agreement.” The opinion noted that Clarendon’s arbitrator could still make her decision on the VQS II record before her without any reference to the XOL case, she did not need to disclose confidential information to fulfill her duties as an arbitrator, nor was she a fact witness. The Court distinguished Trustmark v. John Hancock, on the ground that there the arbitrator had already breached a confidentiality agreement, thereby rebutting the presumption recognized by the Hancock Court that “‘arbitrators can disregarded what they already know.’” It concluded that the essence of Trustmark’s claim was merely a fear of a breach, for which there was no cause of action. The court granted Clarendon’s motion to dismiss and denied Trustmark’s motion for injunctive relief.
Although there was no deadline in the reinsurance contract for agreeing upon an arbitrator, the Court held that because there had been a four month period in which no umpire had been appointed it would appoint one, itself. It also granted Clarendon’s motion to compel Trustmark to return to arbitration.

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To add a ZDefocus node to the Node Graph panel, select the input image that you need to blur and then choose the Filterbutton to display the Filter menu. Next, choose ZDefocus from the menu; the ZDefocus# node will be inserted in the Node Graph panel. Also, The ZDefocus# node properties panel will be displayed with the ZDefocus tab chosen in the Properties Bin, refer to Figure art21-1.
You will also notice a focal point widget in the Viewer# panel. This widget is used to adjust the position of the focal plane. On moving this widget, the focus plane and focal point parameters update automatically. If you select the Use GPU if available check box in the node properties panel, the processing of the node is run on the GPU instead of CPU. If GPU is present in the scene, its name will be displayed above the check box, refer to Figure art21-1. You can also select which GPU you need to use. To do so, open the Preferences dialog box by pressing SHIFT+S and then choose the desired option from the GPU Device drop-down of the GPU Device area, refer to Figure art21-2.
Make sure the Read1 node is selected and then press 1 to view its output in the Viewer1 panel, refer to Figure art21-3.
Select Z_Depth from the Channel Sets drop-down; the depth channel will be displayed in the Viewer1 panel, refer to Figure art21-4. Now, select rgba from the Channel Sets drop-down.
Select Z_Depth.red from the depth channel drop-down; you will notice blur in the Viewer1 panel, refer to Figure art21-5.
In the Viewer1 panel, move the focal point widget to the front part of the chopper; the area around the point will be in focus immediately, refer to Figure art21-6.
Select the focal plane setup from the output drop-down; the depth of field information will be displayed in the rgb channels in the Viewer1 panel. Move the focal point to see the output properly, refer to Figure art21-7.
This option is similar to the focal plane setup option but it displays the DOF information after the depth is divided into layers, refer to Figure art21-8. When the automatic layer spacing check box is selected, the ZDefocus node automatically decides how many depth layers to be used based on the value specified by the maximum parameter. When you clear this check box, you can use the depth layers and layer curve parameters to control the numbers of layers and spacing between the layers, respectively.
In continuation with the Part - 1 of this article, we will work with the remaining options available in the ZDefocus node properties panel.
Make sure the Read1 node is selected and then press 1 to view its output in the Viewer1 panel, refer to Figure art22-1.
In the Read1 node properties panel, select the auto alpha check box. You will notice in the Viewer1 panel that highlights are now out of focus, as shown in Figure art22-2.
Enter 2 in the aspect ratio field. You will notice the cat's eye type effect in the Viewer1 panel, as shown in Figure art22-3.
Enter 1 in the aspect ratio field. Next, select bladed from the filter type drop-down; the highlights in the Viewer1 panel will displayed in shape of iris blades, as shown in Figure art22-4.
Enter 3 in the bladed field; the highlights in the Viewer1 panel will display in the shape which is made of 3 iris blades, as shown in Figure art22-5.
Select the gamma correction check box; a gamma curve of 2.2 will be applied on the image before blurring and then reversed for the final result. This will make the bokeh more pronounced, as shown in Figure art22-7.
Check the bloom check box to make the highlights more visible. When you select the check box, the bloom threshold andbloom gain parameters will become active. The highlights above the value specified by the bloom threshold value will be multiplied with the values specified for the bloom gain parameter.
Enter 0.88 and 2.44 in the bloom threshold and bloom gain parameters, respectively. Figure art22-8 shows the highlights after entering the value.
If you select filter shape setup from the output drop-down, the filter shape which is responsible for the shape of the highlights will be displayed in the Viewer1 panel, as shown in Figure art22-9.
Click on the empty area of the Node Graph panel and then add Constant node. Next, set its size to 255x255. The addedConstant1 node will act as a place holder for the Flare node.
In the ZDefocus1 node properties panel, select image from the filter type drop-down; an error message will be displayed in theViewer1 panel because the filter image has no alpha channel embedded in it. To rectify it, select rgba.red from the filter channel drop-down.


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The non-Archimedean space is a multi-scale one. The paper shows that this face is applicable to developing mathematical models of rocks exhibiting a hierarchy of structural levels. A closed model, considering anisotropy and weakening of a rock mass, is constructed. The equations in terms of displacements and the resultant internal force vector are derived. The authors have obtained the numerical solution to the problem on deformation of a rock mass around extended galleries, and showed how the areas of weakening and residual strength evolve. The energy flow lines are plotted.
1.	M. A. Sadovsky, «On natural lumpiness of rocks,» Dokl. AN SSSR, 247, No. 4 (1979).
2.	A. F. Revuzhenko, S. B. Stazhevskii, and E. I. Shemyakin, «On the deformation mechanism of loose material under large-scale shears,» Fiz.-Tekh. Probl. Razrab. Polezn. Iskop., No. 3 (1974).
3.	M. Onami, et al., Introduction to Micromechanics [Russian translation], G. Ya. Gunn (Ed.), Metallurgiya, Moscow (1987).
4.	V. F. Krotov and M. Ya. Brovman, «Extreme plastic metal deformations,» Izv. AN SSSR, Mekhan. Mashinostr., No. 3 (1962).
5.	V. F. Krotov, V. Z. Bukreev, and V. I. Gurman, New Processes for Variation Calculations in Flight Dynamics [in Russian], Mashinostroeniye, Moscow (1969).
6.	S. Aldeverio, Yi. Fenstad, R. Hueng-Kron, and T. Lindstrom, Non-Standard Methods in Stochastic Analysis and Mathematical Physics [Russian translation], Mir, Moscow (1990).
7.	M. Devis, Applied Non-Standard Analysis, Wiley, New York (1977).
8.	F. Klein, Elementary Mathematics from the Higher Mathematics Standpoint. Geometry [in Russian], Nauka, Moscow (1987).
9.	V. A. Uspenskii, What is a Non-Standard Analysis? [in Russian], Nauka, Moscow (1987).
10.	A. F. Revuzhenko, Non-Archimedean Space as the Basis of the Mathematical Apparatus in Rock Mechanics [in Russian], D. D. Ivlev and N. F. Morozov (Eds.), Fizmatlit, Moscow (2006).
11.	A. F. Revuzhenko, Mechanics of Elastic-Plastic Media and the Non-Standard Anaysis [in Russian], NGU, Novosibirsk (2000).
12.	N. I. Muskhelishvili, Some Fundamental Problems of Mathematical Theory of Elasticity [in Russian], Edition 5, Nauka, Moscow (1966).
13.	A. F. Revuzhenko, «Rocks as a medium with internal sources and flows of energy. Report 1,» Fiz.-Tekh. Probl. Razrab. Polezn. Iskop., No. 4 (1990).
14.	S. V. Lavrikov and A. F. Revuzhenko, «Model of deformation of pillars with consideration of the effects of energy storage and weakening of the materials,» Fiz.-Tekh. Probl. Razrab. Polezn. Iskop., No. 6 (1994).
15.	N. A. Umov, Selected Works [in Russian], Gostekhizdat, Moscow — Leningrad (1950).
16.	A. Lyav, Mathematical Theory of Elasticity [in Russian], NKI SSSR, Moscow — Leningrad (1935).
17.	V. I. Kramarenko and A. F. Revuzhenko, «Energy flows in medium under deformation,» Fiz.-Tekh. Probl. Razrab. Polezn. Iskop., No. 6 (1988).
The paper reports on the test data on the elastic-plastic deformation of mottled sylvinite and rock salt under trialxial compression conditions. The basic regularities are established for variations of strain and strength parameters of salt rocks depending upon the structure and shape of specimens and the loading rates.
1.	A. A. Baryakh, S. A. Konstantinova, and V. A. Asanov, Salt Rock Deformation [in Russian], Gorny Inst., Ekaterinburg (1996).
2.	V. M. Zhigalkin, O. M. Usol’tseva, V. N. Semenov, P. A. Tsoi, V. A. Asanov, A. A. Baryakh, I. L. Pan’kov, and V. N. Toksarov, « Deformation of quasi-plastic salt rocks under different conditions of loading. Report I: Deformation of salt rocks under uniaxial compression,» Fiz.-Tekh. Probl. Razrab. Polezn. Iskop., No. 6 (2005).
3.	G. D. Ushakov, Apparatus and Processes for Rock Deformation Investigations [in Russian], Nauka, Novosibirsk (1977).
4.	A. N. Stavrogin and B. G. Tarasov, Experimental Physics and Mechanics of Rocks [in Russian], Nauka, St. Petersburg (2001).
The paper proposes an efficient method for the joined solution to the problems on fluid flow and hydraulic fracture extension.
1.	V. V. Zubkov, V. F. Koshelev, and A. M. Lin’kov, «Numerical modeling of hydraulic fracture initiation and development,» Fiz.-Tekh. Probl. Razrab. Polezn. Iskop., No. 1 (2007).
2.	Yu. P. Zheltov and S. A. Khristianovich, «Hydraulic fracturing in an oil-bearing pool,» Izv. AN SSSR, OTN, No. 5 (1955).
3.	J. Geertsma and F. de Klerk, «A rapid method of predicting width and extent of hydraulically induced fractures,» J. Pet. Tech., December (1969).
4.	T. K. Perkins and L. F. Kern, «Widths of hydraulic fractures,» J. Pet. Tech., Sept. (1961).
5.	R. D. Carter, «Derivation of the general equation for estimating the extent of the fractured area,» in: Appendix to «Optimum fluid characteristics for fracture extension,» by G. C. Howard and C. R. Fast, Drill. and Prod. Prac. API. (1957).
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7.	R. P. Nordgren, «Propagation of a vertical hydraulic fracture,» Soc. Pet. Eng. J., Aug. (1972).
8.	O. P. Alekseenko and A. M. Vaisman, «Certain aspects of a two-dimensional problem on the hydraulic fracturing of an elastic medium,» Fiz.-Tekh. Probl. Razrab. Polezn. Iskop., No. 3 (1999).
9.	K. G. Nolte, «Fracture design based on pressure analysis,» Soc. Pet. Eng. J. Paper SPE 10911, Feb. (1988).
10.	C. Wright, «Rate step-down analysis — a diagnostic for fracture entry,» in: Reservoir Stimulation, M. J. Economides and K. G. Nolte (Eds.), Chapter 9 (2000).
11.	A. M. Lin’kov, V. V. Zubkov, and M. A. Kheib, «A method of solving three-dimensional problems of seam workings and geological faults,» Fiz.-Tekh. Probl. Razrab. Polezn. Iskop., No. 4 (1997).
12.	A. M. Lin’kov, Complex Boundary Integral Approach of the Elasticity Theory [in Russian], Nauka, Saint Petersburg (1999).
13.	D. I. Garagash and E. Detournay, «Plane-strain propagation of fluid-driven fracture: small toughness solution,» ASME, J. Appl. Mech., 72 (2005).
14.	D. I. Garagash, «Plane-strain propagation of a hydraulic fracture during injection and shut-in: asymptotic of large toughness,» Eng. Fract. Mech., 73 (2005).
15.	S. L. Mitchell and A. P. Pierce, «An asymptotic framework for analysis of hydraulic fracture: the impermeable fracture case,» ASME, J. Appl. Mech., 74 (2007).
16.	A. M. Lin’kov, «Numerical modeling of three-dimensional problems of rock mechanics,» Fiz.-Tekh. Probl. Razrab. Polezn. Iskop., No. 1 (2006).
The paper studies the influence of a gypsum material composition on the characteristic of formation and extension of tensile fractures in the zones of tensile stress concentrations in gypsum samples under compression. The experimental results are compared with the data of on a limiting pressure calculated by the traditional and gradient failure criteria. The parameters of the gradient criterion for the studied materials are determined.
1.	A. J. Durelli and R. H. Jacobson, «Brittle-material failures as indicators of stress-concentration factors,» Exp. Mech., 2, No. 3 (1962).
2.	E. Z. Lajtai, «Brittle fracture in compression,» Int. J. Fract., 10, No. 4 (1974).
3.	B. J. Carter, «Size and stress gradient effects on fracture around cavities,» Rock Mech. and Rock Eng., 25, No. 3 (1992).
4.	H. Hyakutake, T. Hagio, and H. Nisitani, «Fracture of FRP plates containing notches or a circular hole under tension,» Int. J. Pressure Vessels and Piping, 44, No. 3 (1990).
5.	S. Imamura and Y. Sato, «Fracture of a graphite solid cylinder with a transverse hole in tension,» J. Coll. Eng. Nihon Univ. Ser. A., 28 (1987).
6.	H. Nisitani and H. Noguchi, «Tensile fracture criterion of high strength steel specimens with a circumferential notch,» Trans. J. Soc. Mech. Eng. Ser. A., 52, No. 477 (1986).
7.	A. Seweryn and Z. Mroz, «A non-local stress failure condition for structural elements under multiaxial loading,» Eng. Fract. Mech., 51, No. 6 (1995).
8.	S. E. Mikhailov, «A functional approach to non-local strength condition and fracture criteria,» Eng. Fract. Mech., 52, No. 4 (1995).
9.	L. P. Isupov and S. E. Mikhailov, "A comparative analysis of several nonlocal fracture criteria, « Arch. Appl. Mech., 68, No. 9 (1998).
10.	S. V. Suknev, «Local strength criterion,» Probl. Proch., No. 4 (2004).
11.	S. V. Suknev, «Gradient strength criterion,» in: Cold Resistance of Materials and Structural Elements: Results and Prospects [in Russian], Nauka, Novosibirsk (2005).
12.	S. V. Suknev and M. D. Novopashin, «Criterion of normal tension crack formation in rocks under compression,» Fiz.-Tekh. Probl. Razrab. Polezn. Iskop., No. 2 (2003).
13.	M. A. Legan, «Interaction between gradient criteria of local strength in the stress concentration zone and the linear fracture mechanics,» Prikl. Mekh. Tekh. Fiz., No. 4 (1993).
14.	S. V. Suknev, V. K. Elshin, and M. D. Novopashin, «Experimental investigation into processes of crack formation in rock samples with hole,» Fiz.-Tekh. Probl. Razrab. Polezn. Iskop., No. 5 (2003).
15.	L. I. Sedov, Continuum Mechanics [in Russian], 2, Nauka, Moscow (1984).
Historical development of the rock mass rating (RMR) system, first developed and later reviewed by Bieniawski, and contributed by other researchers, is presented. The advanced version of RMR classification and the scope of its application are specified.
1.	Z. T. Bieniawski, «Engineering classification of jointed rock masses,» Trans. South African Institute Civil Engineering, 15 (1973).
2.	N. R. Barton, R. Lien, and I. Lunde, «Engineering classification of rock masses for the design of tunnel supports,» Rock Mechanics, 6, No. 4 (1974).
3.	E. Hoek, «Strength of the rock and rock masses,» ISRM News Journal, 2, No. 2 (1995).
4.	A. Palmström, «RMi-a rock mass characterization system for rock engineering purposes,» PhD Thesis, Oslo University, Norway (1995).
5.	A. Palmström, «On classification systems,» in: Proceedings of Workshop on Reliablity of Classification Systems a Part of the International Conference «GeoEng-2000», Melbourne (2000).
6.	R. Ulusay and H. Sonmez, Engineering Properties of Rock Masses, [in Turkish], The Chamber of Geology Engineering of Turkey, Ankara, Turkey (2002).
7.	H. Lauffer, «Gebirgsklassifizierung für den stullenbau,» Geologie und Bauwesen, 24 (1958).
8.	J. A. Franklin and R. Chandra, «The slake durability test,» Int. J. Rock Mech. & Min. Sci., No. 9 (1972).
9.	H. J. Oliver, «Swelling properties and other related mechanical parameters of Karro strata as encountered in the orange-fish tunnel,» in: Proceedings of the 15th Annual Congress of Geological Society of South Africa (1973).
10.	Z. T. Bieniawski, «Geomechanics classification of rock masses and its application in tunneling,» in: Proceedings of the 3rd Conference of International Society of Rock Mechanics, Denver (1974).
11.	Z. T. Bieniawski, «Rock mass classification in rock engineering,» in: Proceedings of the Symposium on Exploration for Rock Engineering, Cape Town, Balkema (1976).
12.	Z. T. Bieniawski, «The geomechanics classifications in rock engineering applications,» in: Proceedings of the 4th Congress on Rock Mechanics, ISRM, Montreux (1979).
13.	Z. T. Bieniawski, «Rock mass classification as a design aid in tunneling,» Tunnels and Tunelling, July (1988).
14.	Z. T. Bieniawski, Engineering Rock Mass Classifications, John Wiley and Sons (1989).
15.	ISRM. The Complete ISRM Suggested Methods for Rock Characterization, Testing and Monitoring: 1974–2006. Suggested Methods Prepared by the Commission on Testing Methods, International Society for Rock Mechanics, R. Ulusay and J. A. Hudson (Eds.), Compilation Arranged by the ISRM Turkish National Group, Ankara, Turkey (2007).
16.	J. S. Schrier, «The block punch index test,» Bul. Int. Assoc. Eng. Geology, 38 (1988).
17.	R. Ulusay and C. Gokceoglu, «The modified block punch index test,» Can. Geotechn. J., 34, No. 6 (1997).
18.	R. Ulusay and C. Gokceoglu, «An experimental study on the size effect in block punch index test and its general usefulness,» Int. J. of Rock Mech. and Min. Sci., 35, Nos. 4 and 5 (in NARMS’98-ISRM International Symposium, Cancun-Mexico) (1998).
19.	R. Ulusay and C. Gokceoglu, «A new test procedure for the determination of the block punch index and its possible uses in rock engineering,» ISRM News J., 6, No. 1 (1999).
20.	R.Ulusay, C.Gokceoglu, and S. Sulukcu, «Draft ISRM suggested method for determining block punch strength index (BPI),» Int. J. Rock Mech. and Min. Sci., 38 (2001).
21.	S. Sulukcu and R. Ulusay, «Evaluation of the block punch index test with particular reference to the size effect, failure mechanism and its effectiveness in predicting rock strength,» Int. J. Rock Mech. and Min. Sci., 38 (2001).
22.	D. H. Laubscher, «Geomechanics classification of jointed rock masses-mining applications,» Trans. Inst. Min. Met. (1977).
23.	D. H. Laubscher, «Design aspects and effectiveness of support system in different mining conditions,» Trans. Inst. Min. Met. (1984).
24.	E. Unal, R. Ulusay, and I. Ozkan, Rock Engineering Evaluations and Rock Mass Classification at Beypazari Trone Site, METU Project No: 97–03–05–02–02 (1997а).
25.	E. Unal, R. Ulusay, and I. Ozkan, Rock Engineering Evaluations and Rock Mass Classification at Beypazari Trone Field: Borehole TS-3 Site, Project No: 97–03–05–01–06, METU Ankara (1997b).
26.	B. Singh and R. K. Goel, Rock Mass Classification: A Practical Approach in Civil Engineering, Elsevier (1999). 27.	H. Lauffer, «Zur gebirgsklassifizierung bei frasvortrieben,» Felsbau, 6, No. 3 (1988).
28.	R. K. Goel and J. L. Jethwa, «Prediction on support pressure using RMR classification,» in: Proceedings of the Indian Geotechnical Conference, Surat, India (1991).
29.	Z. T. Bieniawski, «Determining rock mass deformability: Experience from case histories,» Int. J. Rock Mech. Min. Sci., 15 (1978).
30.	J. L. Sefarim and J. P. Pereira, «Consideration of the geomechanics classification of Bieniawski,» in: Proceedings of the International Symposium on Engineering Geology and Underground Constructions, Lisbon, Portugal, 1 (1983).
31.	G. A. Nicholson and Z. T. Bieniawski, «A non-linear deformation modulus based on rock mass classification,» Int. J. of Min. and Geol. Eng., No. 8 (1990).
32.	R. Ulusay, «Geotechnical evaluations and deterministic design consideration from pit-wall slopes at Eskihisar (Yatagan-Mugla) strip coal mine,» Ph. D. Thesis, METU, Geological Engineering Dept. Ankara, Turkey (1991).
33.	R. Ulusay and C. Aksoy, «Assessment of failure mechanism of highwall slope under spoil pile loadings at a coal mine,» Eng. Geology, 38 (1994).
34.	C. O. Aksoy, T. Onargan, T. Gungor, K. Kucuk, and M. Kun, The Evaluation of Excavation and Support System between Goztepe and F. Altay Stations of Second Stage of Izmir Metro Project, DEUEF, DEU-MAG, Izmir (2006).
35.	T. Onargan and C. O. Aksoy, Report on the Evaluation of the Excavation of Type Second Station Tunnel and Application in Project on the Second Stage of Izmir Metro Project, DEUEF, Izmir (2006).
36.	M. K. Verman, «Rock mass-tunnel support interaction analysis,» Ph. D. Thesis, University of Roorkee, Roorkee, India (1993).
37.	E. Hoek and E. T. Brown, Underground Excavations in Rock, Inst. of Mining and Metallurgy, Stephen Austin and Sons Ltd., London, 106 (1980).
38.	E. Unal and I. Ozkan, «Determination of classification parameters for clay-bearing and stratified rock mass,» in: Proceedings of the 9th International Conference on Ground Control in Mining, West Virginia University, Morgantown (1990).
39.	E. Unal, Modified Rock Mass Classification: M-RМR system, Milestone in Rock Engineering, The Bieniawski Jubilee Collection, Balkema, Rotterdam (1996).
40.	R. N. Singh and D. R. Gahrooee, «Application of rock mass weakening coefficient for stability assessment of slopes in heavily jointed rock mass,» Int. J. of Surface Mining, Reclamation and Environment, No. 3 (1989).
41.	R. Ulusay, I. Ozkan, and E. Unal, «Characterization of weak, stratified and clay-bearing rock masses for engineering applications,» in: Proceedings of the Fractured and Jointed Rock Masses Conference, L. R. Mayer, N. G. W. Cook, R. E. Goodman and C. F. Trans (Eds.), Lake Tahoe, California (1995).
42.	H. Sonmez and R. Ulusay, «Modification to the geological strength index (GSI) and their applicability to stability of slopes,» Int. J. of Rock Mechanics and Mining Science, 36, No. 6 (1999).
43.	E. Unal, I. Ozkan, and R. Ulusay, «Characterization of weak rock, stratified and clay-bearing rock masses,» in: ISRM Symposium:EUROCK’92 Rock Characterization, Chester, UK, J. A. Hudson (Ed.), British Geotechnical Society, London (1992).
The author has simulated behavior of geomaterials based on the modified models of Drucker — Prager — Nikolaevski and Rudnicki. It is shown how fractures extend under stresses applied on a section of a specimen surface. The characteristic patterns are obtained for deformation localization in low porosity and high porosity sandstone under biaxial compression, and the stress-to-strain curves are plotted.
1.	D. Drucker and W. Prager, «Soil mechanics and plastic analysis of limit design,» Quaterly Applied Mathematics, 10, No. 2 (1952).
2.	V. N. Nikolaevski, «Mechanical properties of soils and theory of plasticity,» in: Mechanics of Deformable Solids [in Russian], 6, VINITI AN SSSR, Moscow (1972).
3.	V. N. Nikolaevski, Geomechanics and Fluid Dynamics [in Russian], Nedra, Moscow (1996).
4.	J. F. Labuz, S.-T. Dai, and E. Papamichos, «Plane-strain compression of rock-like materials,» Int. J. of Rock Mech. and Min. Sci. & Geomech., Abstr., 33, No. 6 (1996).
5.	W. Zhu and T. Wong, «The transition from brittle faulting to cataclastic flow. Permeability evolution,» Journal of Geophysical Research, 102, No. B2 (1997).
6.	R. A. Schultz and R. A. Siddharthan, «General framework for the occurrence and faulting of deformation bands in porous granular rocks,» Tectonophysics, No. 411 (2005).
7.	A. El. Bieda, J. Sulema, and F. Martineau, «Microstructure of shear zones in Fontainebleau sandstone,» Int. J. of Rock Mech. and Min. Sci. & Geomech., 39 (2002).
8.	J. Fortin, S. Stanchits, G. Dresen, and Y. Gue?guen, «Acoustic emission and velocities associated with the formation of compaction bands in sandstone,» Journal of Geophysical Research, 111, B10203, doi:10.1029/2005JB003854 (2006).
9.	R. J. Cuss, E. H. Rutter, and R. F. Holloway, «The application of critical state soil mechanics to the mechanical behaviour of porous sandstones,» Int. J. of Rock Mech. and Min. Sci. & Geomech., 40 (2003).
10.	J. W. Rudnicki, «Shear and compaction band formation on an elliptic yield cap,» Journal of Geophysical Research, 109, B03402, doi:10.1029/2003JB002633 (2004).
11.	E. Grueschow and J. W. Rudnicki, «Elliptic yield cap constitutive modeling for high porosity sandstone,» International Journal of Solids and Structures, 42 (2005).
12.	F. L. DiMaggio and I. S. Sandler, «Material models for granular soils,» J. of Eng. Mech., ASCE, 97, No. EM3 (1971).
13.	A. F. Revuzhenko, Mechanics of Granular Media, Springer, (2006).
14.	Yu. P. Stefanov, «Numerical investigation of deformation localization and crack formation in elastic brittle-plastic materials,» Int. J. Fract., 128, No. 1 (2004).
15.	M. M. Nemirovich-Danchenko, «Hypoelastic brittle medium model: application to calculation of deformation and failure of rocks,» Fizich. Mesomekh., 1, No. 2 (1998).
16.	Yu. P. Stefanov, «Deformation localization and failure in geomaterials. Part I: Numerical modeling,» Fizich. Mezomekh., No. 5 (2002).
17.	Yu. P. Stefanov, «Some features of numerical modeling of the elastic brittle-plastic material behavior,» Fizich. Mezomekh., 8, No. 3 (2005).
18.	Yu. P. Stefanov and M. T’erselen, «Modeling the behavior of high porosity geomaterials in the course of formation of localization compaction bands,» Fizich. Mezomekh., 10, No. 1 (2007).
19.	M. Wilkins, «Calculation of elastoplastic flows,» in: Methods in Computational Physics, B. Alder (Ed.), 3, Academic, New York (1964).
20.	J. W. Rudnicki and J. R. Rice, «Condition for localization of plastic deformation in pressure sensitive dilatant materials,» J. Mech. and Phys. Solids, 23, No. 6 (1975).
21.	K. A. Issen and J. W. Rudnicki, «Conditions for compaction bands in porous rock,» J. Geophys. Res., 105, No. 21 (2000).
In terms of the Muruntau open pit, the paper addresses the possibility of formation of a rupture structure in host rock, based on the analysis of its surface manifestations.
1.	V. N. Rodionov, «Dissipative structures in rock mechanics,» Usp. Mekh., 4, No. 2 (1979).
2.	V. N. Rodionov and I. A. Sizov, «Appearance on nonuniformity of the stress state as a result of fracture of rocks,» Fiz.-Tekh. Probl. Razrab. Polezn. Iskop., No. 4 (1981).
3.	V. N. Rodionov, A. G. Bagdasar’yan, and V. M. Kol’tsov, «Correlations between the granular compositions of an exploded rock mass and other manifestations of the rock mass structure,» Fiz.-Tekh. Probl. Razrab. Polezn. Iskop., No. 5 (1982).
4.	V. N. Rodionov and I. A. Sizov, «Model of a solid with the dissipative structure for rock mechanics,» Fiz.-Tekh. Probl. Razrab. Polezn. Iskop., No. 6 (1988).
5.	V. N. Rodionov, I. A. Sizov, and V. M. Tsvetkov, Foundations of Rock Mechanics [in Russian], Nauka, Moscow (1986).
6.	V. N. Rodionov and A. G. Bagdasar’yan, «Surface irregularities and structure of rock in place,» Fiz.-Tekh. Probl. Razrab. Polezn. Iskop., No. 3 (1985).
The paper expounds results gained in mathematical modeling of stress state of a rock mass under mining by sublevel caving with areal-frontal and frontal ore drawing schemes. Stability of underground excavations in the course of applying the compared methods is evaluated in terms of the Sheregesh deposit. The authors recommend on supporting the openings at the ore drawing-off level.
1.	V. N. Oparin, et al., World-Wide Experience of Underground Mining Automation [in Russian], N. N. Mel’nikov (Ed.), SO RAN, Novosibirsk (2007).
2.	V. R. Imenitov, Mining Operations in Underground Ore Development [in Russian], Nedra, Moscow (1984).
3.	A. M. Freidin, P. A. Filippov, S. P. Gaidin, E. N. Koren’kov, and S. A. Neverov, «Prospects of technical re-equipment of underground mines of the metallurgy complex in West Siberia,» Fiz.-Tekh. Probl. Razrab. Polezn. Iskop., No. 3 (2004).
4.	A. M. Freidin and S. A. Neverov, «Modeling of area-end ore drawing under caved rocks,» Fiz.-Tekh. Probl. Razrab. Polezn. Iskop., No. 5 (2005).
5.	A. M. Freidin, E. N. Koren’kov, P. A. Filippov, et al., «Russian Federation Patent No. 2208162. Ore development with sublevel caving,» Byull. Izobret., No. 19 (2003).
6.	S. A. Neverov, A. M. Freidin, and A. A. Neverov, «Russian Federation Patent No. 2301335. Underground ore development by sublevel caving,» Byull. Izobret., No. 17 (2007).
7.	A. B. Fadeev, Finite Element Method in Rock Mechanics [in Russian], Nedra, Moscow (1987).
8.	B. V. Shrepp, V. I. Boyarkin, V. A. Kvochin, et al., «Problems of deep mining at the deposits of Gornaya Shoria and Khakasia,» in: Production Problems of Deep Ore Development [in Russian], IPKON AN SSSR, Moscow (1979).
9.	B. V. Shrepp, «Geomechanical estimate of mining conditions at deep level of the Sheregesh deposit,» Bezop. Truda Prom., No. 7 (1995).
10.	D. M. Kazikaev, Rock Mechanics in Underground Ore Mining [in Russian], MGGU, Moscow (2005).
For marble underground excavation it is important to develop a collection of procedures, rules and models in order to collect information to build a database, making it usable and available to all users so that they can make decisions. The information must be based on technical and economic criteria, during the lifetime of the excavation and after the close down of the mining activities. The importance of geotechnical characterization in the economical evaluation of underground mining of dimension stone is so emphasized. A sensitivity analysis of the economic indicators with the variation of the geotechnical and ornamental parameters is performed. The results of an economic feasibility study of an underground exploitation of marble at Pardais, Vila Vi?osa, are presented.
1.	M. M. Costa e Silva and P. Falcão Neves, «Management procedures for an underground excavation of marble,» ISRM International Symposium on Rock Mechanics for Mountains Regions, EUROCK 02, SPG (2002). 2.	Manual de Rocas Ornamentales, ITGE, Madrid, (1998). 3.	Projecto de execução de uma exploração subterrânea de mármores em Pardais, Vila Viçosa, IGM (2000). 4.	L. J. Krajewski and L. P. Ritzman, Operations Management, Addison-Wesley Publishing Company (1993). 5.	L. Cabral, Economia Industrial, McGraw Hill de Portugal, Lisboa (1994).
Test data on the selective reagent modes at bulk flotation cycle and modified carboxymethylcellulose (CMC) at a selection cycle for the bulk copper-molybdenum concentrate. The selected reagent mode at a bulk flotation cycle with industrial kerosene and Beraflot as collectors and OPSB as a frother made it possible to recover 87 % of copper and 82 % of molybdenum into a rough bulk concentrate. Tests with CMC application at the selection cycle revealed a potential opportunity to reduce 1.5 — 2.0 times the summary sodium sulfide consumption, to cut down running costs of pulp and depressant heating, and to improve molybdenum recovery with no negative effect on other parameters of the bulk concentrate selection.
1.	Zh. Baatarkhuu, Sh. Gezegt, S. Davaanyam, et al., «Experience of copper-porphyry ore flotation,» Gorn. Zh., No. 2 (1998).
2.	S. Gereltuyaya, Zh. Baatarkhuu, and S. Davaanyam, «Choice of a selective collector for pyrite and development of technological mode for collective flotation circuit,» in: Development of New Machinery and Technologies in Mongolia, Erdenet, Mongolia (1998).
3.	S. Davaanyam, I. Sh. Sataev, Zh. Baatarkhuu, et al., Process for copper-molybdenum ore beneficiation with S-703G collector,» Tsv. Met., No. 8 (2000).
4.	Zh. Baatarkhuu, «Effect of genetic-morphological properties of copper-porphyry ores on their dressing technology,» Gorn. Zh., No. 1 (2001).
5.	V. A. Bocharov, L. S. Khachatryan., V. A. Ignatkina, and G. A. Lapshina, Investigation into Process for Copper-Molybdenum Separation, Based on Application of the Modified Organic CMC Depressant [in Russian], Fondy MISiS, Moscow (2005).
6.	V. A. Bocharov, G. S. Agafonova, and L. S. Khachatryan, «Intensive CMC salt-based processes for dressing rebellious ores and products,» Gorn. Zh., No. 1 (1988).
7.	V. A. Chanturia, T. V. Nedosekina, M. I. Mantsevich, and I. N. Khramtsova, «Effect of dimethyldithiocarbamata on interaction of pyrrhotite with butylxanthate,» Tsv. Met., No. 10 (2002).
8.	V. A. Bocharov, V. A. Ignatkina, G. A. Lapshina, et al., «Studies of collectors for flotation of gold-bearing ores,» Tsv. Met., No. 1 (2005).
9.	V. A. Ignatkina, V. A. Bocharov, V. V. Stepanova, and T. I. Kustova, «Studies of modified dithiophosphates in the sulfide copper, iron, zinc, and gold mineral flotation,» Obog. Rud, No. 6 (2005).
The paper describes the laboratory studies aimed at comprehensive analysis and establishment of the optimal parameters for preparation of a pulp for reverse cation flotation when producing a low-silica iron ore concentrate. The kinetics of the process is investigated with application of a collecting agent and depressing agents for iron minerals.
1.	S. V. Dudenkov, L. Ya. Shubov, L. A. Glazunov, et al., Theoretical and Practical Bases for Application of Flotation Reagents [in Russian], Nedra, Moscow (1969).
2.	O. S. Bogdanov, A. K. Podnek, V. Ya. Khainman, et al., «Issues of the flotation theory and technology,» Trudy Inst. Mekhanobr., Issue 124, Leningrad (1959).
3.	V. A. Glembotskii, Foundations of the Physico-Chemistry of Flotation Processes [in Russian], Nedra, Moscow (1980).
4.	G. S. Berger, Floatability of Minerals [in Russian], Gosgortekhizdat, Moscow (1962).
5.	O. S. Bogdanov and N. S. Mikhailova, «Action mechanism of anionic and cation collecting agents during flotation of iron minerals,» in: Proceedings of the 5th Science-and-Technical Session of the Mekhanobr Institute [in Russian], Leningrad (1966).
6.	S. L. Gubin and V. M. Avdokhin, «Magnetite concentrate flotation by cation collectors,» Gorn. Zh., No. 7 (2006).

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Contractual agreements that restrict the post employment activities of employees are generally subject to enforcement under New Jersey law provided established criteria are satisfied. In the employment context, restrictive covenants have been utilized to prohibit employees from revealing confidential, proprietary information and/or trade secrets of the employer after the termination of employment; to prohibit the former employee from competing with the employer and barring individuals from soliciting the clients or other employees of a former employer.
(3) the covenant is not injurious to the public interest.
Solari Industries, Inc. v. Malady, 55 N.J. 571, 581 (1970). Covenants are subject to enforcement in whole or in part to the extent they satisfy the established criteria of reasonableness.
The first factor to be evaluated in assessing the enforceability of a restrictive covenant is whether the provision in question protects a legitimate interest of the employer. It is plain, however, that a restraint which intended solely to aid the employer in preventing business competition is not directed to a legitimate interest and is therefore unenforceable. See Ingersoll-Rand Co. v. Ciavatta, 110 N.J. 609, 634 (1988); Ellis v. Lionkis, 162 N.J. Super. 579, 585 (App. Div. 1978)("a restraint against competition is invalid when its sole purpose is to prevent competition, for it does not protect any legitimate interest of the employer and therefore is not reasonable.").
The ongoing professional relationship between an employer and its clients is generally established as a legitimate business interest that is subject to protection through a restrictive covenant. Whitmyer Bros., Inc. v. Doyle, 58 N.J. 25, 33 (1971); Mailman, Ross, Toyes, & Shapiro v. Edleson, 185 N.J. Super. 434 (Ch. Div. 1982). Note, however, that an employee may not be restrained from continuing relationships with customers that the employee developed prior to his or her employment. Coskey’s T.V. & Radio Sales v. Foti, 253 N.J. Super. 626 (App. Div. 1992).
Employers have legitimate interests in trade secrets and confidential business information through the use of restrictive covenants. Ingersoll-Rand Co. v. Ciavatta, 110 N.J. 609 (1988); Raven v. A. Klein & Co., 195 N.J. Super. 209 (App. Div. 1984).
The protection of unique methods and procedures utilized by a business are a legitimate interest that will justify restrictive covenants with company employees. Raven v. A. Klein & Co., Inc., 195 N.J. Super. 209, 214 (App. Div. 1984).
The second factor that the courts will consider with regard to the enforceability of a restrictive covenant is the reasonableness of the duration and scope of the restrictions to be imposed upon the employee. In this regard, the courts have generally held that enforcement will not issue as to restrictions that pose an undue hardship on former employees.
Absent extenuating circumstances the personal inconvenience and financial hardship of the employee do not rise to the level of undue hardship. Karlin v. Weinberg, 77 N.J. 408, 417-18 n.3 (1978). However, the inability of the employee to find other employment in his or her area of expertise/experience is a factor which has been considered by one court to be a factor which may rise to the level of undue hardship. Id. at 423.
w The time period for which the restraints will be in effect.
The reasonableness of a geographic restraint in a restrictive covenant is largely a function of the character of the business at issue and the relative competitive market. See Chas. S. Wood & Co. v. Cain, 42 N.J. Super. 122, 127 (App. Div. 1956). To that end, where the geographic area specified in the covenant is closely related to the area in which the employer regularly conducts its business, the prospect of the provision being enforceable increases.
In the absence of a specified geographic area of restraint is not necessarily a fatal flaw as the court may interpret the covenant so as to impose a reasonable area of restraint. Mailman, Ross, Toyes & Shapiro v. Edelson, 183 N.J. Super. 434, 440 (Ch. Div. 1982). Moreover, a geographic area need not be specified where the covenant is directed to preserving existing relationships rather than protecting an employer’s geographic area of operation. Schuhalter v. Salerno, 279 N.J. Super. 504, 511 (App. Div.), certif. denied, 142 N.J. 454 (1995); Platinum Mgt., Inc. v. Dahms, 285 N.J. Super. 274, 299 (Law Div. 1995).
The degree to which the court will evaluate the reasonableness of the time period for which a former employee must submit to a restrictive covenant is largely a function of what the facts will support as being reasonably necessary to protect the legitimate interests of the employer. As a matter of course, restrictive covenants with durations of two (2) years are commonly sustained. See Schuhalter v. Salerno, 279 N.J. Super. 504 (App. Div.), certif. denied, 142 N.J. 454 (1995); A.T. Hudson v. Donovan, 216 N.J. Super. 426 (App. Div. 1985). Coordinate with recent developments in business and industry, particularly information technology and computer industries, some courts have measured the time period of restraints against the rapidly evolving nature of the subject business. See Earth Web Inc. v. Schlack, 71 F.Supp.2d 299 (S.D.N.Y. 1999), remanded, 205 F.3d 1322 (2d Cir.), aff’d, 2000 USApp LEXUS 11446 (2d Cir. N.Y. May 18, 2000)(holding one year covenant in internet company officer’s employment to be "too long given the dynamic nature of the [information technology] industry … and Schlack’s former cutting-edge position with Earth Web where his success depended on keeping abreast of daily change in content on the Internet."). Double Click v. Henderson, 1997 W.L. 731413, No. 116914/97 (N.Y. Co.Ct. Nov.7, 1997)(reducing one year covenant to six months in light of the rapidly changing field of internet advertising).
This final factor in the assessment of restrictive covenants is of concern largely in connection with agreements involving individuals offering professional services. In such cases, the concern rests with the effect of the restraints upon those clients of the professional who may unilaterally decide to move their business with that individual when he or she moves to other employment. See Karlin v. Weinberg, 77 N.J. 408 (1978)(physicians); Mailman, Ross, Toyes & Shapiro v. Edelson, 183 N.J. Super. 434 (Ch. Div. 1982)(accountants); Dwyer v. Jung, 133 N.J. Super. 343 (Ch. Div. ), aff’d o.b., 137 N.J. Super. 135 (App. Div. 1975)(attorneys).
A court in evaluating the enforceability of a restrictive covenant is vested with the discretion to enforce only so much of the agreement as it finds reasonable. Provisions that are unreasonable will not be enforced and, where the court finds the agreement to be deliberately oppressive, the court may invalidate it in its entirety. Solari Industries Inc. v. Malady, 55 N.J. 571, 585 (1970).
An essential predicate to enforcement of a restrictive covenant is an enforceable agreement. Accordingly, the agreement must be drafted with an eye toward the legal standards, as well as anticipated avenues of challenge.
Specify the confidential information or other interests of the employer that warrant protection and provide for an acknowledgment by the employee of the need to protect such information.
Specify applicable time periods and geographic territories that are both reasonable and justifiable.
To the extent there exists any interest which might arguably be beyond the scope of the restrictive covenant, such as pre-existing customer relationships of the employee, a comprehensive list of such items should be included.
Include a provision that the employee agrees to the payment of reasonable attorneys fees and costs that may be incurred by the employer in seeking to enforce the agreement in the event of a breach by the employee.
Specify the applicable law that will govern the interpretation and enforcement of the agreement.
Specify that the employer will enforce the agreement through injunction and that the employee acknowledges that a breach of the covenant will result in irreparable harm.
The trade secrets and confidential proprietary information of an employer may be protected from disclosure by employees through non disclosure/confidentiality agreements. Such agreements are commonly used by employers to preserve the confidentiality of technical information, data and specialized know-how that afforded a competitive advantage in the market place.
A trade secret may consist of a formula, process, device or compilation used by one business to secure an advantage over competitors who do not know or use it. Sun Dial Corp. v. Rideout, 16 N.J. 252, 257 (1954). Accordingly, the protection form compelled production that extends to trade secrets has been extended to pricing information, formulas, business strategies, client demographics and customer marketing materials.
The extent to which the process of duplicating the subject information would be easy or difficult for others to undertake.
Ingersoll-Rand vs. Caviatta, 110 N.J. 609, 637 (1988); see 4 Rest. Torts §757.
While an employer is entitled to protect its trade secrets and other confidential information from disclosure, it may not restrict the facility, skill or experience learned or developed during an employee’s tenure with an employer. Ravin v. A. Klein & Co., Inc., 195 N.J. Super. 209, 213-14 (App. Div. 1985).
The employer took precautions to maintain the secrecy of the trade secret.
Rycolin Products Inc. v. Walsh, 334 N.J. Super. 62, 74 (App. Div.), certif.
denied, 165 N.J. 678 (2000).
u The Economic Espionage Act of 1996, 18 USC §1831-39. Individuals who misappropriate an employer’s trade secrets may be subject to federal prosecution and subject to imprisonment for up to 10 years, a substantial fine or both.
u The National Stolen Property Act, 18 USC § 2314-15. The use of the mail or other means to transport stolen trade secrets across state lines may expose former employees to federal criminal liability.
u N.J.S.A. 2C:20-1i (defining "trade secret" in connection with statutory provisions relating to "theft and related offenses.").
The doctrine of inevitable disclosure is an evolving development in the area of trade secret protection that may apply to enjoin an employee from disclosing a former employer’s confidential information and trade secrets to a competitor even in the absence of a restrictive covenant. Significantly, the inevitable disclosure document does not require proof that the former employee actually removed trade secret information or is actually using or even intends to use the trade secret information to benefit his new employer. Rather, injunctive relief may issue where there exists a sufficient basis for the court to infer that duties and responsibilities attendant the former employee’s new position with a competitor will "inevitably cause the individual to reveal the former employer’s trade secrets even in the absence of ill-will or improper motive." The doctrine of inevitable disclosure may thus serve as a basis to enjoin a former employee from working for a competing entity where there exists a rational basis for the court to conclude that restraints are necessary to prevent the disclosure of confidential information retained in the memory of the employee to which the employee will inevitably resort to fulfill the duties and responsibilities for his new employer. See National Starch and Chem. Corp. v. Parker Chem. Corp., 219 N.J. Super. 158, 162-63 (App. Div. 1987); Pepsico, Inc. v. Redmond, 54 F.3d 1262 (7th Cir. 1995).
To assure the highest level of protection for trade secrets and proprietary information, employers should institute a comprehensive program of procedures and measures directed to preserving the confidentiality and safeguarding the information.
Screen presentations, speeches, web sites and business articles for trade secrets.
Caution employees about transmitting confidential information over the Internet.
The potential remedies available as redress for the breach of a restrictive covenant or nondisclosure agreement include both equitable and legal relief, the application of which will turn largely upon the facts present, conduct of the parties and the strategic interests/needs of the plaintiff employer.


Section 422.622. Requesting immediate QIO review of the decision to discharge from the inpatient hospital.
42 CFR § 422.622 - Requesting immediate QIO review of the decision to discharge from the inpatient hospital.
§ 422.622 Requesting immediate QIO review of the decision to discharge from the inpatient hospital.
(a)Enrollee's right to an immediate QIO review. An enrollee has a right to request an immediate review by the QIO when an MA organization or hospital (acting directly or through its utilization committee), with physician concurrence determines that inpatient care is no longer necessary.
(b)Requesting an immediate QIO review.
(1) An enrollee who wishes to exercise the right to an immediate review must submit a request to the QIO that has an agreement with the hospital as specified in § 476.78 of this chapter. The request must be made no later than the day of discharge and may be in writing or by telephone.
(2) The enrollee, or his or her representative, upon request by the QIO, must be available to discuss the case.
(3) The enrollee may, but is not required to, submit written evidence to be considered by a QIO in making its decision.
(4) An enrollee who makes a timely request for an immediate QIO review in accordance with paragraph (b)(1) of this section is subject to the financial liability protections under paragraph (f) of this section, as applicable.
(5) When an enrollee does not request an immediate QIO review in accordance with paragraph (b) of this section, he or she may request expedited reconsideration by the MA organization as described in § 422.584, but the financial liability rules of paragraph (f) of this section do not apply.
(c)Burden of proof. When an enrollee (or his or her representative, if applicable) requests an immediate review by a QIO, the burden of proof rests with the MA organization to demonstrate that discharge is the correct decision, either on the basis of medical necessity, or based on other Medicare coverage policies. Consistent with paragraph (e)(2) of this section, the MA organization should supply any and all information that a QIO requires to sustain the organization's discharge determination.
(d)Procedures the QIO must follow.
(1) When the QIO receives the enrollee's request for an immediate review under paragraph (b), the QIO must notify the MA organization and the hospital that the enrollee has filed a request for an immediate review.
(2) The QIO determines whether the hospital delivered valid notice consistent with § 422.620(b)(3).
(3) The QIO examines the medical and other records that pertain to the services in dispute.
(4) The QIO must solicit the views of the enrollee (or his or her representative) who requested the immediate QIO review.
(5) The QIO must provide an opportunity for the MA organization to explain why the discharge is appropriate.
(6) When the enrollee requests an immediate QIO review in accordance with paragraph (b)(1) of this section, the QIO must make a determination and notify the enrollee, the hospital, the MA organization, and the physician of its determination within one calendar day after it receives all requested pertinent information.
(7) If the QIO does not receive the information needed to sustain an MA organization's decision to discharge, it may make its determination based on the evidence at hand, or it may defer a decision until it receives the necessary information. If this delay results in extended Medicare coverage of an individual's hospital services, the MA organization may be held financially liable for these services, as determined by the QIO.
(i) The basis for the determination.
(ii) A detailed rationale for the determination.
(iii) An explanation of the Medicarepayment consequences of the determination and the date an enrollee becomes fully liable for the services.
(iv) Information about the enrollee's right to a reconsideration of the QIO's determination as set forth in § 422.626(f), including how to request a reconsideration and the time period for doing so.
(e)Responsibilities of the MA organization and hospital.
(i) A detailed explanation of why services are either no longer reasonable and necessary or are no longer covered.
(ii) A description of any applicable Medicare coverage rule, instruction, or other Medicare policy including information about how the enrollee may obtain a copy of the Medicare policy from the MA organization.
(iii) Any applicable MA organization policy, contract provision, or rationale upon which the discharge determination was based.
(iv) Facts specific to the enrollee and relevant to the coverage determination sufficient to advise the enrollee of the applicability of the coverage rule or policy to the enrollee's case.
(2) Upon notification by the QIO of a request for an immediate review, the MA organization must supply any and all information, including a copy of the notices sent to the enrollee, as specified in § 422.620(b) and (c) and paragraph (e)(1) of this section, that the QIO needs to decide on the determination. The MA organization must supply this information as soon as possible, but no later than noon of the day after the QIO notifies the MA organization that a request for an expedited determination has been received from the enrollee. The MA organization must make the information available by phone (with a written record made of any information not transmitted initially in writing) and/or in writing, as determined by the QIO.
(3) In response to a request from the MA organization, the hospital must supply all information that the QIO needs to make its determination, including a copy of the notices required as specified in § 422.620(b) and (c) and paragraph (e)(1) of this section. The hospital must furnish this information as soon as possible, but no later than by close of business of the day the MA organization notifies the hospital of the request for information. At the discretion of the QIO, the hospital must make the information available by phone or in writing (with a written record of any information not transmitted initially in writing).
(4) Upon an enrollee's request, the MA organization must provide the enrollee a copy of, or access to, any documentation sent to the QIO by the MA organization, including written records of any information provided by telephone. The MA organization may charge the enrollee a reasonable amount to cover the costs of duplicating the documentation for the enrollee and/or delivering the documentation to the enrollee. The MA organization must accommodate such a request by no later than close of business of the first day after the day the material is requested.
(f)Coverage during QIO expedited review.
(1) An MA organization is financially responsible for coverage of services as provided in this paragraph, regardless of whether it has delegated responsibility for authorizing coverage or discharge determinations to its providers.
(i) If the MA organization authorized coverage of the inpatient admission directly or by delegation (or the admission constitutes emergency or urgently needed care, as described in §§ 422.2 and 422.112(c)), the MA organization continues to be financially responsible for the costs of the hospital stay when an appeal is filed under paragraph (a)(1) of this section until noon of the day after the QIO notifies the enrollee of its review determination, except as provided in paragraph (b)(5) of this section. If coverage of the hospital admission was never approved by the MA organization or the admission does not constitute emergency or urgently needed care as described in §§ 422.2 and 422.112(c), the MA organization is liable for the hospital costs only if it is determined on appeal that the hospital stay should have been covered under the MA plan.
(B) The QIO upholds the non-coverage determination made by the MA organization.
(3) If the QIO determines that the enrollee still requires inpatient hospital care, the hospital must provide the enrollee with a notice consistent with § 422.620(c) of this subpart when the hospital or MA organization once again determines that the enrollee no longer requires inpatient hospital care.
(4) If the hospital determines that inpatient hospital services are no longer necessary, the hospital may not charge the enrollee for inpatient services received before noon of the day after the QIO notifies the enrollee of its review determination.
(1)Right to request a reconsideration. If the enrollee is still an inpatient in the hospital and is dissatisfied with the determination, he or she may request a reconsideration according to the procedures described in § 422.626(g).
(2)Right to pursue the standard appeal process. If the enrollee is no longer an inpatient in the hospital and is dissatisfied with this determination, the enrollee may appeal to OMHA for an ALJ hearing, the Council, or a Federal court, as provided for under this subpart.


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Indian Penal Code, 1860 — Sections 304B, 306, 498A r/w Section 34 — Criminal Procedure Code, 1973 — Sections 378(1), 378(3) — Dowry Death, Abetment of Suicide, Cruelty, Common Intention — Appeal against acquittal — Appreciation of evidence — PWs 1, 2 and 5 i.e. father, mother and brother of deceased do not speak of any dowry demand — From evidence of PW 1 it is clear that there was no ill-treatment by accused Nos. 1 to 3 to deceased and ill-treatment if any, was only by accused Nos. 4 to 6 — High Court’s reasoning that there was nothing to show that A-1 owned a truck is contrary to evidence on record — PW 1 has accepted position as noticed by Trial Court — There is no analysis of conclusions of Trial Court by High Court — Trial Court categorically held that so-called ill-treatment was not for bringing money and for not willing to part with her child in favour of accused No. 4 — Interference by High Court with order of acquittal is not correct — Impugned order of High Court set aside.
1. Challenge in this appeal is to the judgment of a Division Bench of the Karnataka High Court allowing the appeal filed by the respondent-State of Karnataka. Said Criminal appeal was filed under Section 378(1) and (3) of the Code of Criminal Procedure, 1973 (in short the ‘Code’). The learned 3rd Additional Sessions Judge, Dharwad, directed acquittal of the present appellants who faced trial for alleged commission of offences punishable under Sections 304-B, 306, 498-A read with Section 34 of the Indian Penal Code, 1860 (in short the ‘IPC’).
The accused No.1 is the husband of Ratnavva (hereinafter referred to as the ‘deceased’) who was given in marriage to the accused No.1 about 1½ years prior to her death and during their marriage, the accused No.1 was given 11 Tolas of gold and a cash of Rs.10,000/- along with other utensils. In spite of all this, the accused were ill-treating and harassing the deceased Ratnavva coercing her to bring more dowry and accordingly a cheque of Rs.10,000/- was given to the accused No.1 by the mother of the deceased. But in spite of that the accused did not stop the ill-treatment, and harassment to the deceased Ratnavva. On account of constant harassment and ill-treatment to the deceased, they made the life of the deceased a miserable one which abetted the deceased to commit suicide. The accused No.1 is the husband of the deceased, the accused Nos.2 and 3 are the parents-in-law, the accused Nos.4 and 5 are the sisters-in-law and the accused No. 6 is the brother-in-law of the deceased.
On the basis of information lodged, investigation was undertaken and on completion thereof charge-sheet was filed. As accused persons pleaded innocence, trial was held.
In order to substantiate its case, the prosecution has examined at the trial PWs 1 to 18 and got marked in evidence Ex. P1 to P15 and Mos 1 to 12. Investigation was undertaken.
The trial Court held that the Investigating Officer should not have proceeded with the investigation as he was the complainant and on that ground held the prosecution version to be tainted. It also found that the evidence of the witnesses did not inspire confidence.
Acquittal was challenged before the High Court, which on the other hand held that the conclusions of the trial Court are erroneous.
3. Learned Counsel for the appellants submitted that the High Court nowhere recorded a finding that the conclusions of the trial Court were either perverse or not supported by reasons.
4. Learned Counsel for the respondent-State on the other hand supported the judgment of the High Court.
5. So far as the desirability of the complainant undertaking investigation is concerned there is no legal bar. The decisions of this Court in Bhagwan Singh v. The State of Rajasthan, 1976 (1) SCC 15 at para 18 and Megha Singh v. State of Haryana, 1996 (11) SCC 709 at para 4 have to be confined to the facts of the said cases. Merely because the complainant conducted the investigation, that would not be sufficient to cast doubt on the prosecution version to hold that the same makes the prosecution version vulnerable. The matter has to be decided on case to case basis without any universal generalization.
6. On the facts of the present case A-1 went to lodge the report. The SI (PW-17) registered the case and on completion of investigation charge sheet was filed by D.S.P.
“378. Appeal in case of acquittal.—(1) Save as otherwise provided in Sub-section (2) and subject to the provisions of Sub-sections (3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court, or an order of acquittal passed by the Court of Session in revision.
(6) If, in any case, the application under Sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under Sub-section (1) or under Sub-section (2).
8. Whereas Sections 379-380 cover special cases of appeals, other Sections lay down procedure to be followed by Appellate Courts.
9. It may be stated that more or less similar provisions were found in the Code of Criminal Procedure, 1898 (hereinafter referred to as “the old Code”) which came up for consideration before various High Courts, Judicial Committee of the Privy Council as also before this Court. Since in the present appeal, we have been called upon to decide the ambit and scope of the power of an Appellate Court in an appeal against an order of acquittal, we have confined ourselves to one aspect only i.e. an appeal against an order of acquittal.
10. Bare reading of Section 378 of the present Code (appeal in case of acquittal) quoted above, makes it clear that no restrictions have been imposed by the Legislature on the powers of the Appellate Court in dealing with appeals against acquittal. When such an appeal is filed, the High Court has full power to re-appreciate, review and reconsider the evidence at large, the material on which the order of acquittal is founded and to reach its own conclusions on such evidence. Both questions of fact and of law are open to determination by the High Court in an appeal against an order of acquittal.
11. It cannot, however, be forgotten that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent Court of Law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial Court.
12. Though the above principles are well established, a different note was struck in several decisions by various High Courts and even by this Court. It is, therefore, appropriate if we consider some of the leading decisions on the point.
13. The first important decision was rendered by the Judicial Committee of the Privy Council in Sheo Swarup v. R. Emperor, (1934) 61 IA 398). In Sheo Swarup the accused were acquitted by the trial Court and the local Government directed the Public Prosecutor to present an appeal to the High Court from an order of acquittal under Section 417 of the old Code (similar to Section 378 of the present Code). At the time of hearing of appeal before the High Court, it was contended on behalf of the accused that in an appeal from an order of acquittal, it was not open to the Appellate Court to interfere with the findings of fact recorded by the trial Judge unless such findings could not have been reached by him had there not been some perversity or incompetence on his part. The High Court, however, declined to accept the said view. It held that no condition was imposed on the High Court in such appeal. It accordingly reviewed all the evidence in the case and having formed an opinion of its weight and reliability different from that of the trial Judge, recorded an order of conviction. A petition was presented to His Majesty in Council for leave to appeal on the ground that conflicting views had been expressed by the High Courts in different parts of India upon the question whether in an appeal from an order of acquittal, an Appellate Court had the power to interfere with the findings of fact recorded by the trial Judge. Their Lordships thought it fit to clarify the legal position and accordingly upon the “humble advice of Their Lordships”, leave was granted by His Majesty. The case was, thereafter, argued. The Committee considered the scheme and interpreting Section 417 of the Code (old Code) observed that there was no indication in the Code of any limitation or restriction on the High Court in exercise of powers as an Appellate Tribunal. The Code also made no distinction as regards powers of the High Court in dealing with an appeal against acquittal and an appeal against conviction. Though several authorities were cited revealing different views by the High Courts dealing with an appeal from an order of acquittal, the Committee did not think it proper to discuss all the cases.
17. In Nur Mohd. v. Emperor, AIR 1945 PC 151, the Committee reiterated the above view in Sheo Swarup (supra) and held that in an appeal against acquittal, the High Court has full powers to review and to reverse acquittal.
18. So far as this Court is concerned, probably the first decision on the point was Prandas v. State, AIR 1954 SC 36 (though the case was decided on 14.3.1950, it was reported only in 1954). In that case, the accused was acquitted by the trial Court. The Provincial Government preferred an appeal which was allowed and the accused was convicted for offences punishable under Sections 302 and 323, IPC. The High Court, for convicting the accused, placed reliance on certain eye-witnesses.
20. In Surajpal Singh v. State, 1952 SCR 193, a two-Judge Bench observed that it was well established that in an appeal under Section 417 of the (old) Code, the High Court had full power to review the evidence upon which the order of acquittal was founded. But it was equally well settled that the presumption of innocence of the accused was further reinforced by his acquittal by the trial Court, and the findings of the trial Court which had the advantage of seeing the witnesses and hearing their evidence could be reversed only for very substantial and compelling reasons.
21. In Ajmer Singh v. State of Punjab, 1953 SCR 418, the accused was acquitted by the trial Court but was convicted by the High Court in an appeal against acquittal filed by the State. The aggrieved accused approached this Court. It was contended by him that there were “no compelling reasons” for setting aside the order of acquittal and due and proper weight had not been given by the High Court to the opinion of the trial Court as regards the credibility of witnesses seen and examined. It was also commented that the High Court committed an error of law in observing that “when a strong ‘prima facie’ case is made out against an accused person it is his duty to explain the circumstances appearing in evidence against him and he cannot take shelter behind the presumption of innocence and cannot state that the law entitles him to keep his lips sealed”.
“In our opinion, it is not correct to say that unless the Appellate Court in an appeal under Section 417, Criminal Procedure Code came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.
It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial Court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.
“21. There is no embargo on the Appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the Appellate Court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not”.
(1) An Appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an Appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an Appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an Appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(4) An Appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of Law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.
38. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.
39. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the Judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J. (as His Lordship then was) in State of U.P. v. Krishna Gopal, 1988 (4) SCC 302.
40. The above position was highlighted in Krishnan and Anr. v. State, represented by Inspector of Police, IV (2003) SLT 613=III (2003) CCR 53 (SC)=2003 (7) SCC 56 and Valson and Anr. v. State of Kerala, IV (2008) DLT (CRL.) 173 (SC)=IV (2008) CCR 218 (SC)=Criminal Appeal No. 572 of 2001 disposed of on August 1, 2008.
41. In the instant case the trial Court categorically found that the so called ill- treatment was for not bringing money and also for not willing to part with her child in favour of accused No. 4. The High Court in the impugned judgment held that the appellants were guilty of offence punishable under Sections 306 and 498-A, IPC.
42. The evidence of PW-2, the wife of PW-1 and the mother of the deceased is of great significance. She stated that accused persons were abusing, beating her daughter and pulling her hairs and they were not giving proper food to her. She advised her daughter to adjust as this witness has got five more daughters. She further stated that they had given Rs.10,000/- in cash out of the income of rent received by her and she gave it to accused No. l through cheque and still accused persons did not stop ill-treatment and again demanded money. They demanded Rs.15,000/- and this witness was unable to pay the same. So far the cheque is concerned, the cheque is marked at Ex. P-4, which is a Xerox copy and the Manager of the Bank is examined in support of the case as PW-12. The witness PW-12 deposed that the cheque has been encashed on 24.4.1989 at Syndicate Bank, Mundgor. The accused persons also admitted of having taken the cheque for Rs. 10,000/- but their defence is that accused No.1 was plying a truck and the truck met with accident which required heavy repairs and so PW-2 has given a cheque for repairs of said truck and not as dowry. To show that A-1 was owning a truck for which he has produced the Xerox of R.C. Book which shows the name of A-1 as per the owner of the truck bearing No. MYE 5577. To show that the said truck met with an accident accused produced the copy of extract of Register No. III Criminal from the Court of J.M.F.C., Khanapur which shows that the truck met with accident on 26.12.1988 and as per the date of registration and F. I. R. and Register, the case was registered under Sections 279, 337 and 338, IPC, on the basis of which, the accused pleaded guilty for the said offences and the accused was convicted and sentenced to pay a fine of Rs. 500/- and Rs. 800/- respectively. From the above said document prima facie it is clear that A-1 was having the truck bearing No.MYE 5577 which met with an accident on 26.12.1988 within the jurisdiction of Khanapur Court and defence of the accused persons appears to be more probable. At least it creates doubt regarding the case of prosecution that the cheque for Rs. 10 000/- was given towards the demand of dowry. PW-1 admitted in the cross-examination that accused No. 2 is the native of Goshanatti in Khanapur Tal, and he has not got house and land at Goshanatti. But she denied that accused No. 2 is cultivating lands personally. But she admitted that she does not know who is cultivating the land of accused No 1. She also denied that accused Nos. 3 to 6 were residing at Goshanatti. She had admitted that accused No. 1 was running the truck. She admitted that her daughter had come for delivery to her house and she stayed for seven months with them and after delivery after about three months, she went to her husband’s house. She denied that they had paid the cheque for repairs of the said truck which met with an accident.
43. PW-1’s evidence is also significant. He stated his daughter and son-in-law-accused No. l came to his house and his daughter told that there is no ill-treatment by her husband but stated that there is ill-treatment by accused Nos. 4 to 6 and so, she does not want to go back and stayed there. From this evidence of PW- 1, it is clear that there was no ill-treatment by accused Nos. 1 to 3 to the deceased Ratnavva and ill-treatment if any, was only by accused Nos. 4 to 6. In spite of the same, PW-1 stated that on the next day, his daughter and accused No. l went to their house. Another version given by this witness is that accused No.4-Geeta had no issues and she was insisting the deceased Ratnavva to give her son in adoption to her, to which she refused and so accused No.4 started ill-treating her. This version is unbelievable, simply because, accused No. 4 has no issues, it does not mean that she will insist her brother or her brother’s wife to give their only son in adoption to her. Even assuming that she has demanded so, it does not mean that is demand of dowry so as to attract the provisions of Section 498(A), IPC.
44. PWs 1, 2 and 5 i.e. father, mother and brother of the deceased do not speak of any dowry demand. The High Court’s reasoning that there was nothing to show that A-1 owned a truck is contrary to the evidence on record. PW-1 has accepted the position as noticed by the trial Court. There is no analysis of the conclusions of the trial Court by the High Court.
45. Above being the position, the interference by the High Court with the order of acquittal is not correct. The impugned order of the High Court is set aside. The bail bonds executed pursuant to this Court’s Court dated 22.3.2002 shall stand discharged. The appeal is allowed.

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